Tarun Chatterjee and Harjit Singh Bedi, JJ. - (1.) Leave granted.
(2.) The appellant herein was detained for a period of one year under an order dated 9th December 2005 passed under Section 3(2) of the Karnataka Prevention of Dangerous Activities of Bottleggers Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act 1985. This order was challenged in the Karnataka High Court on 16th December 2005 by way of a writ of habeas corpus. By its order dated 1st September 2006, the Division Bench relying on Commissioner of Police and Anr. v. Gurbux Anandram Bhiryani, JT 1988 (1) SC 8 quashed the order of detention and directed that the appellant be set at liberty. The State of Karnataka thereafter moved an application for review of the order dated 1st September 2006 on the plea that the aforesaid judgment had been over-ruled by a later judgment of this Court in T. Devki v. Govt of Tamil Nadu and Ors., 1990 CriLJ 1140 . The Honble Judges constituting the Bench observed that they had "spent sleepless" nights on account of an error committed by them in the light that the counsel had not brought the subsequent judgment of the Supreme Court to notice and that their judicial conscience had been pricked for having passed an order relying on a judgment which had been over-ruled. The Bench thus allowed the Review Petition on 30th March 2007 and re-called the order dated 1st September 2006. The Bench also noticed that the period of detention had since expired on 8th December 2006 and accordingly observed: In these circumstances, despite the opposition of Sri Javali, learned Counsel and despite his contention that his client cannot be sent back to jail, in the light of a detention order having come to an end in the case on hand, we are not prepared to accept his submissions. A beneficiary of a defective order cannot be permitted to have the benefit and that benefit has to be recalled in the light of recalling benefit order. In these circumstances, we deem it proper to direct the police to take him to custody for the remaining period.
(3.) It is against this order that the present appeals have been filed. While issuing notice on 30th April 2007 the operation of the impugned order had been stayed. In the meanwhile, the learned Counsel for the respondents has also filed a reply and we have accordingly heard the matter on merits. The learned Counsel for the appellant has pointed out that as the detention order was deemed to have come to an end on the expiry of one year i.e. 8th December 2006, it would be inappropriate to send the appellant back into custody and for this plea has placed reliance on Sunil Fulchand Shah v. Union of India and Ors., 2000 CriLJ 1444 . The learned Counsel for the respondent has, however, placed reliance on a subsequent judgment of this Court in State of T.N. and Anr. v. Alagar, (2006) 7 SCC 540 to contend that the period during which the detenu appellant had remained outside custody on account of a wrong order could not be taken into account in computing the period of detention and that it was still open to the detaining authority to examine as to what was to be done in the circumstances of the case keeping in view certain specified factors.;