JUDGMENT Giridhar Malaviya, J.
1. The Supreme Court, while disposing of the Special Leave Petition No. 1069 of 1985 against an order of the Allahabad High Court dated 4-12-1984 in Habeas Corpus Petition No. 9907 of 1984 of Ram Pravesh Singh, by which an order under Section 3(2) of the National Security Act passed against the petitioner was challenged, passed the following order:-
Without entering into the merits of the case, as only 10 days are left for the petitioner to complete his period of detention, we direct that the petitioner may be released forthwith.
The petition is accordingly disposed of.
2. By yet another order dated 9-3-1988 in Criminal Appeal No. 121 of 1988 arising out of SLP (Crl.) 3253 of 1987 the Supreme Court, in the case of Shiv Ratan Damani v. Supdt. Central Jail. Agra, passed the following order :-
Special leave granted.
We are informed by counsel for the parties that the period of detention of the appellant will expire on 22 March, 1988. In the circumstances, without expressing any opinion on the merits of the controversy raised in this case, we direct that the appellant be released forthwith. The appeal is disposed of accordingly.
3. In view of the above mentioned orders passed by the Supreme Court, in a large number of Habeas Corpus Petitions filed in the High Court challenging the detention under one of the preventive detention laws, a request was made that following the judgments of the Supreme Court in the two cases mentioned above, this Court should direct release of the petitioner forth with if barely 15 days or so were left for the period to expire under the order of detention. This Court accordingly passed orders in a number of habeas corpus petitions directing release of the petitioners in those cases without entering into the merits of the order of detention. Some of the Benches of this Court ultimately granted similar reliefs to the petitioner without entering into the merits of the case, if the period of detention yet to be undergone was less than a month. However when a similar request was made by learned counsel for the petitioner in this case before a Bench of Hon. G.P. Mathur and Hon. S. K. Phaujdar, JJ. it appears the learned counsel for the State raised an objection that the High Court could not pass orders similar to the Supreme Court without entering into the merits of the case as the order, in effect, passed by the High Court amounted to reducing the period of detention of a detenu, which power under the preventive detention laws of this country had been conferred only upon the State Government. After hearing counsel for both the sides the Bench observed as follows :-
In our opinion, the decisions in Ram Pravesh Singh and Shiv Ratan Demani (supra) were given on the facts and circumstances of the particular cases and were rendered by the Supreme Court under Article 142 of the Constitution. We may also mention here that there are some decisions of the Supreme Court where in spite of the fact that the period of detention had almost come to an end, no direction was issued for setting the detenu at liberty. In Smt. Kamla Bai v. Commr. of Police (1993) 3 JT (SC) 666 : 1993 AIR SCW 2305, the detenu was detained on 1 -5-1992 and even after noticing that the period of detention had almost come to an end, the appeal was dismissed on 30-4-1993.
For the reasons indicated earlier, we are of the opinion that the view taken by the above mentioned division benches of this Court require reconsideration by a larger bench. We, therefore, refer the following questions of law for decision by a larger bench.
1. Whether a person detained under a preventive law is entitled, as of right, to be set at liberty only on the ground that the unexpired period of his detention is less than a month?
2. If the answer to question No. 1 is in affirmative, can the detenue claim such a right in a second or successive petitions even though his earlier petition has already been dismissed on merits thereby upholding his continued detention for the period fixed by the appropriate Government?
4. To consider the aforesaid two questions we have heard Sri D.S. Mishra learned counsel for the petitioner and Sri Mahendra Pratap Singh, learned Additional Government Advocate.
5. It may be mentioned at the outset that the question No. 2 framed and referred was in the background that earlier petitioner Jokhu Lal had filed Habeas Corpus petition No. 45194 of 1993 for being set at liberty but the same was dismissed by a Division Bench of this Court on 13-5-1994. Thereafter the present petition was filed by the petitioner for being set at liberty and the only point pressed before the Bench was that since less than one month's period had remained to expire, hence in view of the two Supreme Court orders mentioned earlier in the Special Leave Petitions, as also in view of the earlier orders of the Division Benches of this Court, the petitioner had become entitled to be released forthwith without entering into the merits of this case.
6. Learned counsel for the petitioner contended that in view of Article 141 of the Constitution the High Courts were bound to follow the Supreme Court orders passed in the case of Ram Pravesh Singh and Shiv Ratan Damani (supra). His contention was that if the Supreme Court, by passing such an order, could be deemed to have curtailed the period of detention of 12 months as confirmed by the Government in the case before it, then even the High Court in exercise of its powers under Article 226 of the Constitution could curtail the period of 12 months and set at liberty the detenu after he had served out 11 months in pursuance of the order of detention.
7. On the other hand Sri Mahendra Pratap Singh, learned Addl. Govt. Advocate stated that under Section 13 of the National Security Act it was for the Government to determine the period of detention. However the Supreme Court alone, in view of the powers conferred on it by Article 142 of the Constitution, could alter the period of detention. It is further contended that since the High Court did not possess any such power as was available to the Supreme Court under Article 142 of the Constitution, hence the High Court could not alter the period of detention. The contention on behalf of the State was that the High Court under Article 226 of the Constitution could only hold that the order of detention or continued detention of the petitioner had become bad in the eyes of law and then by way of consequent relief, could direct the petitioner to be set at liberty; but the High Court, without entering into merits of the case could not direct release of the petitioner unless he had served out his full period of detention prescribed by an order of the concerned Government.
8. It is difficult to accept the contention put forth by learned counsel for the petitioner that any person detained under a preventive detention law was entitled, as of right, to be set at liberty only because the un-expired period of his detention was less than a month. If this proposition was to be accepted then all the persons detained for a period of 12 months, which is normally the maximum period prescribed almost in every preventive detention law, could straight away approach the High Court and claim, as of right, to be set at liberty without entering into merits of the case, immediately on the expiry of 11 months' period. In the case of Poonam Lata v. M.L. Wadhawan AIR 1987 SC 1383 the Supreme Court while considering the question whether the period of parole granted to a detenu could be computed while calculating the period of detention, had also considered the question of the Court substituting the period of detention. After setting out the scheme of the National Security Act and explaining the meaning of 'detained' and thereafter discussing the question of computing the period of parole vis-a-vis the period of detention there lordships of the Supreme Court, in paragraph 22, observed as follows:-
It is pertinent to observe that the Court has no power to substitute the period of detention either by abridging or enlarging it. The only power that is available to the Court is to quash the order in case it is found to be illegal. That being so, it would not be open to the Court to reduce the period of detention by admitting the detenu on parole.
Although the observation made above was in respect of the power of the Court to grant parole, the fact still remains that the Supreme Court in no unclear terms has said that power to substitute the period of detention was not available to a Court. Relying upon this decision it was urged by learned counsel for the State that this Court could not direct release of a person detained under one of the preventive detention laws unless the Court on examining the order of detention on merit had quashed it. In this connection learned counsel for the State also placed before this Court the provisions of Section 68A(2)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as PIT NDPS Act). It is urged that this provision relating to forfeiture of property derived from, or used in, illicit traffic was made applicable even against the persons in respect of whom the order of detention had been made under NDPS Act and the proviso to Sub-section (c) made it clear that the Act would apply provided such order of detention had not been revoked on the report of the Advisory Board constituted under the said Act or such order of detention has not been set aside by a Court of competent jurisdiction. It is accordingly argued by Sri Mahendra Pratap, learned Addl. Govt. Advocate, that if without going into the merits of the case the petition is allowed and a detenu is set free only on the ground that less than a month was left for his release under the preventive detention law, then a person would make applications before the appropriate authority seeking release of the property forfeited from him, although the Court would not have decided the writ petition on merit nor would have the Court released the person by finding any defect in the detention order. It has been argued on behalf of the State that in a few cases where this Court had allowed a habeas corpus petition filed under the PIT NDPS Act only on the ground that less than a month's period was to expire and the petitioner was directed to be released forthwith, such persons had made in application for release of the property on the ground that the order of detention had been set aside by a competent court before it had come to an end. We have no hesitation to say that whenever a petition has been allowed without quashing the order of detention on merit, the proviso to Sub-section (c) of Section 68A(2) of N.D.P.S. Act shall not be applicable. Accordingly it is held that if a particular person is merely released from jail but the order of detention against him is not quashed it would not be possible for him to claim release of his property under attachment.
9. The extreme arguments raised both the learned counsel for the petitioner as also the learned Additional Government Advocate viz. that a detenu, as of right, can claim release simply on the ground that less than a month remains for his period of detention to expire, and the other argument that this Court, in no circumstance, can direct release of a detenu without entering into the merits of the case and without quashing the order, do not appear to be correct and are not acceptable. If the argument of petitioner's counsel that only on less than a month remaining to expire the detenu can, as of right, claim his liberty is accepted then the very purpose of fixing the period of detention under the preventive detention laws would be rendered meaning-less. The legislative intent is clear that under the preventive detention laws which prescribe a maximum period of detention the appropriate government while confirming the detention order alone has to specify the period of detention under the Act. In the case of Poonam Lata v. M.L. Wadhawan AIR 1987 SC 1383 (supra) the Supreme Court, in paragraph 12, had clearly observed as follows :-
On the principle that exercise of administrative jurisdiction is open to judicial review by the superior court, the High Court under Article 226 or this Court under Article 32 may be called upon in a suitable case to examine the legality and propriety of the Government action. There is no scope for entertaining the application for parole by the Court straightaway. The legislative scheme, keeping the purpose of the statute and the manner of its fulfilment provided thereunder, would not justify entertaining of an application for release of a detenu on parole Since in our view release on parole is not a matter of judicial determination, apparently no provision as contained in the Code of Criminal Procedure relating to the computing of the period of bail was thought necessary in the Act.
Accordingly it is to be held that merely on the ground that the petitioner's remaining period of detention is less than a month he can not claim release in a petition filed before the High Court under Article 226 of the Constitution. The question whether the Supreme Court was exercising it as powers under Article 142 of the Constitution when it passed orders in the cases of Ram Pravesh Singh and Shiv Ratan Damani, is really not relevant to be considered as, this Court can, as already held, always grant similar relief to a detenu in a suitable case under Article 226 of the Constitution.
9A. However it would be equally futile to suggest that whatever be the circumstances, the High Court in its powers under Article 226 of the Constitution, can never release a person from jail without entering into the merits of the case unless the full term of detention has expired
10. In a case where on a bare perusal of the detention order, the High Court is of the opinion that the order is patently illegal and unsustinable, then the Court may, without following the usual procedure of granting time to opposite party to file a counter-affidavit, call upon the parties to argue the case and direct immediate release of the petitioner from detention holding that the detention order is unsustainable. There might be another case in which the High Court, on the facts and circumstances placed before it, finds that the purpose for which detention of the petitioner was ordered no longer exists and, therefore, his further detention is neither necessary nor legal, in such a case the High Court, without entering into the validity of the detention order, may direct release of the petitioner forthwith. Instances given above are not intended to be exhaustive but are only illustrative. What we would like to say is that there may arise cases in which the High Court, without entering into the question of validity of the detention order, may direct the release of the detenu; the decision would, however, depend on the facts and circumstances of the case. In our considered view, it can be said without much controversy that the High Court in its discretionary jurisdiction vested under Article 226 of the Constitution, can in appropriate cases, direct release of the detenu without entering into the question of validity of the detention order, but a detenu under preventive law can not claim release as a matter of right on the ground that the period of detention left is less than one month and also can not insist that his release should be ordered by the Court without entering into merits of the case or without considering the validity of the detention order.
11. While the matter was being heard by the Full Bench the petitioner' s counsel had to concede that question No. 1 as framed could not be answered in the affirmative and it could not be said that a person, as of right, was entitled to be set at liberty only on the ground that the un-expired period of his detention was less than a month. Similarly learned Addl. Govt. Advocate also conceded that it could not be said that the High Court under Article 226 of the Constitution did not possess the power even in appropriate cases to direct release of a detenu forthwith without deciding the question on merit. As a matter of fact the learned counsel for the petitioner contended that question No. 1 referred to the Full Bench be re-framed to examine his contention whether on certain admitted facts in a writ petition it could be possible for a court to direct release of a detenu without going into the merits of the case if only a short period was left for the period of detention to expire. Since we permitted learned counsel for the petitioner to elaborate his point, we propose to examine this contention also.
12. Learned counsel for the petitioner referred to the case of District Magistrate v. R. Kumaravel 1994 SCC (Cri) 229. The detenu in that case had been preventively detaining and had challenged their order of detention before the High Court. The High Court allowed the writ petition and quashed the detention order. The Supreme Court in appeal before it held that the High Court was not justified in quashing the detention order and set aside the reasoning and conclusions recorded by the High Court. However, in the last paragraph of the said judgment vise. Para 11, the Supreme Court observed as follows:-
The detenus were released, as a result of the High Court judgment, in February, 1992. We are of the view that it would not be in the interest of justice-due to lapse of time-to detain the respondents for undergoing the remaining period of detention under the impugned detention order. We, therefore, direct that the impugned detention orders shall not be further executed as a result of our judgment. It would, however, be open for the detaining authority to consider afresh, keeping in view the present circumstances and activities of the respondents, the question of detention in accordance with law. We allow the appeals in the above terms.
Similarly the Supreme Court in the case of State of Maharashtra v. Manik 1994 SCC (Cri) 1492 had not interfered against the order of the High Court by which the Government had been restrained from executing the order of detention passed against the detenu under the provisions of the National Security Act by observing as follows :-
Having regard to the object of the order to be passed, we feel at this time that too after one and a half years after the passing of the detention order even if the appeal is allowed, no purpose would be served by executing the order of detention though we are of the firm view that the High Court was not at all justified in entertaining such an application at a very premature stage before the execution of the order and preventing the appellant from executing the order. However, it is always open to the State if it is satisfied that either of the two conditions enumerated under Section 3(a) or (b) still prevailing, to pass an order.
In the case of State of U.P. v. Hari Singh Thakur 1988 SCC (Cri) 44 : AIR 1987 SC 2080 also the Supreme Court observed as follows:-
While we are not happy with the manner in which the detention order has been quashed, having regard to the fact that about one year and nine months have elapsed since the quashing of the detention order (the order was quashed in May, 1985 and we are in Jan. 1987), we do not think it would be proper for us to entertain this petition for special leave.
On the strength of the three cases mentioned above, learned counsel for the petitioner wanted to suggest that even though the Supreme Court in all these three cases had found that the High Court was not justified in quashing the order of detention, yet they did not direct the detenus to be taken into custody again to serve out the period of detention which had been prescribed by the detaining authority or the State Govt. Consequently it is urged that the contention made on behalf of the State Govt. that under no circumstance the courts can alter the period of detention, should not be accepted. It is accordingly suggested that in a suitable case the High Court in its writ jurisdiction under Article 226 of the Constitution, can direct release of the petitioner. Learned counsel for the petitioner wants to place reliance on the circumstances where despite the petition being pending in the High Court for some length of time, for one reason or the other, the High Court could not take up the petition and ultimately only less than a month remained for the petitioner to be released in pursuance of the detention order, it was contended that as in the present case in which the petitioner was in fact in custody in a criminal case from 28-8-1993 whereafter the order of detention was passed and served upon him on 14-9-1993, and the petition had come up before the bench concerned when the petitioner had really remained in jail for more than a year, the court, without entering into the merits of the case, could say that the hearing of the petition could not be delayed and the petitioner in fact having remained in jail for a period of one year, could be directed to set at liberty forthwith without going into the merits of the case. In this connection the petitioner relied upon the case of Satyawati v. State of U.P. W.P. No. 1352/91 filed under Article 32 of the Constitution before the Supreme Court which was decided on 4-12-1991 in which the detenu was detained under the National Security Act for preventing him to affect the maintenance of public order on the ground which related to the various incidents alleged to have taken place during the elections in May, 1 991 and October, Nov. 1991. The Supreme Court took into consideration the fact that the order of detention was made only with a view to maintain public order during the elections and since the elections had already been held the purpose of the detention order had been served. Finding that there was no justification for further detention of detenu under Section 13(3) of the National Security Act the petition was allowed and detenu was directed to be set free.
13. On the strength of this judgment of the Supreme Court in the case of Satyawati (supra) Sri Mishra has contended that in any number of cases this Court could conclude without going into the merits of the case that in view of the petitioner having remained in jail for more than 11 months the continued detention of the petitioner was no longer necessary despite the fact that initially the detention of the petitioner was justified. Sri Mishra has, therefore said that it would not be necessary in a given case to quash the order of detention and get permit the petitioner to be set free before the final period of detention comes to an end. All that may be observed is that there can not possibly be any restriction on power of the High Court to grant relief to a petitioner under exceptional circumstances, without entering into the merit of the case, but as a policy such orders should be rare and few.
14. After considering various submissions made by learned counsel for the parties and going through all the aspects of this case as also the relevant case law, our answer to question No. 1 is in the negative and it is held that a person detained under a preventive detention law is not entitled, as of right, to be set free only on the ground that un-expired period of his detention is less than a month. However, we also make it clear that under a given circumstance in a rare case, it may be possible for the High Court in exercise of its jurisdiction under Article 226 of the Constitution to direct release of a person detained under the preventive law without entering into the question of validity of the detention order, if the Court finds that exigency of the situation demands release of the petitioner forthwith without considering the question of validity of the detention order.
15. Since our answer to question No. 1 is in negative, the second question need not be answered. However, it is made; clear that in a second or successive habeas corpus petition which certainly can be filed by a detenu, he can not claim to be set at liberty forthwith merely on the ground that un-expired period of his detention is less then a month.
16. As the period of detention of the petitioner has already expired and since both the parties have agreed that this petition had, even otherwise, become infructuous, the questions referred are being answered. It would be however, not be necessary to send back the case to the Division Bench as the petition has already become infructuous. The petition is accordingly dismissed as infructuous.