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PETITIONER: CHAMPALAL POONJAJI SHAH

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT27/01/1982

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SEN, A.P. (J) ISLAM, BAHARUL (J)

CITATION:  1982 AIR  791            1982 SCR  (3)  61  1982 SCC  (1) 507        1982 SCALE  (1)26

ACT:      Code  of   Criminal  Procedure   1973,  5.  428-Person- Preventively detained  for  different  periods  under  MISA, COFEPOSA-Later  prosecuted,   convicted  and   sentenced  to imprisonment-Period spent under preventive detention-Whether can be ’set-off’ against sentence of imprisonment.

HEADNOTE:      The Presidency  Magistrate convicted the petitioner for offences under  section 120B  of the  Indian Penal Code read with section  135 of  and Customs  Act and Rule 126P(2) (ii) and (iv)  of the  Defence of  India Rules 1962 and sentenced him to  suffer imprisonment for various periods ranging from two years  to  four  years  and  to  payment  of  fine.  The conviction and sentence was set aside by the High Court, but this Court  in appeal by the State set aside the judgment of acquittal by  the  High  Court  and  restored  that  of  the Presidency Magistrate.  The petitioner was also preventively detained for  various periods first under the Maintenance of Internal Security  Act and afterwards under the Conservation of Foreign  Exchange and  Prevention of Smuggling Activities Act 1974.      In the  review petition and writ petition to this Court it was  contended on  behalf of  the  petitioner  that:  (I) though it  was argued  in the  appeal to this Court that the periods during  which the  petitioner had  been preventively detained  should  be  ’set  off’  against  the  sentence  of imprisonment imposed  upon him  this court  had not  touched upon the  point; and (2) this court’s decision in Government of Andhra  Pradesh and another v. Venkateswara Rao, AIR 1977 SC 1096,  enabled the  petitioner to  claim the total of the three periods  of detention  to be  ’set  off’  against  the sentence of imprisonment.      Dismissing the review and writ petition, ^      HELD: 1.  It was  not argued  that the  petitioner  was entitled to a ’set off’ but that the period of his detention might be  taken into  account in considering the question of the appropriate sentence be imposed on him. [62 H, 63 A].      2(i) In  Government of  Andhra Pradesh  v. Venkateswara Rao, this Court negatived the contention that the expression

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period  of  detention  in  Section  428,  Code  of  Criminal Procedure 1973  included the  detention under the Preventive Detention Act  or the  Maintenance of Internal Security Act. [63 F-G]      (ii) Section 428, Code of Criminal Procedure 1973 makes it clear  that the period of detention which it allows to be ’set off’  against the  term of  imprisonment imposed on the accused on  conviction must  be  during  the  investigation, enquiry, or  trial in  connection with  the ’same  case’  in which he has been convicted. [64 A-B] 62      (iii) only  in circumstances where the petitioner would have unquestionably  been in  detention in connection with a criminal case  if he had not been preventively detained, his preventive detention  might be  reckoned as  detention as an undertrial prisoner or detention pursuant to conviction, for the purposes  of Section  428, Code  of  Criminal  Procedure 1973. [64 G]      In the  instant case  the petitioner had been acquitted by the High Court before any of the orders of detention were made against  him. There  can, there fore, be no question of the detention  being considered  as  detention  pursuant  to conviction nor  can the  detention be  treated as that of an undertrial. [64 F]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ  Petition  (Criminal)  No. 7207 of 1981.      (Under Article 32 of the Constitution of India)      Ram  Jethmalani   and  Miss  Rani  Jethmalani  for  the      Petitioner.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. This  petition for  review and the petition for  the issue of Writ under Article 32 were argued by Shri Jethmalani with, what appeared to us to be more than his  customary   vehemence  and   emotion.  Nonetheless,  we confess, we are not impressed.      By our  judgment dated  August 12,  1981(1), we had set aside the  judgment of acquittal passed by the High Court of Bombay and  restored that  of the  learned Additional  Chief Presidency  Magistrate,   8th  Court,   Esplanade,   Bombay, convicting the  petitioner under  different heads of charges and sentencing  him to suffer imprisonment for various terms ranging from  two years  to four years and to the payment of fine of  Rs. 10,000/-  on each  of different  counts. , Shri Jethmalani contended  that though  he had  argued  that  the period during  which the  petitioner had  been  preventively detained under  the maintenance  of  Security  Act  and  the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act  should be  ’set off’ against the sentence of imprisonment imposed  upon him,  we had not touched upon the point. He also drew our attention to a reference to set off’ in the  written submissions given to us after the hearing of the case.  We may mention that what was argued before us was not that the petitioner was entitled to a ’set off’ but that the period of his detention might be taken into 63 account in  considering  the  question  of  the  appropriate sentence to  A be  imposed on the petitioner, which question was considered by us. But, we will let that pass, accept Mr. Jethmalani’s  word  for  it  and  proceed  to  consider  the question straightaway.      It appears that the petitioner was detained first under

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the provisions of the MISA and later under the provisions of the COFEPOSA.  The periods  of detention  were September 17, 1974 to  April 18,  1975, July  1, 1975 to November 21, 1975 and May  20, 1976  to March  22, 1977.  We are told that the orders of detention, which have not been produced before us, were based  on facts  which were  the vary subject-matter of the criminal  case. The  learned Additional Chief Presidency Magistrate had  convicted the  petitioner  by  his  judgment dated December  13, 1971  but that was set aside by the High Court by  their judgment  dated April 20, 1974. The State of Maharashtra filed  an application  for special  leave  under Art. 136  of the  Constitution  on  November  30,  1974  and special leave  was granted  by this Court on April 15, 1975. It was noticed by this Court at the time of granting special leave that  the petitioner  was then in preventive detention and it  was directed  that in  case  he  was  released  from detention but  re-arrested in  connection with  the case  he should be  released on  bail on  the same  terms as those on which bail  had been  previously granted  by the High Court. The submission  of Shri Jethmalani was that the total of the three periods  of detention  should be "set off’ against the sentence of  imprisonment imposed  upon him.  He relied upon the decision of this Court in Govt. Of Andhra Pradesh & Anr. v. Anne Venkateswara Rao etc. etc.(l)      We are  unable to  agree with  the submission  of  Shri Jethmalani; In  the very  case cited by the learned counsel, the Court  negatived  the  contention  that  the  expression ’period of  detention’  in  Section  428  Code  of  Criminal Procedure  included   the  detention  under  the  Preventive Detention Act  or the  Maintenance of Internal Security Act. It was observed:           "It is  true that the section speaks of the period      of. detention  undergone by  an accused  person, but it      expressly says  that the  detention mentioned refers to      the detention  during  the  investigation,  enquiry  or      trial of the 64      case in  which the  accused person  has been convicted.      The section makes it clear that the period of detention      which it  allows to  be set  off against  the  term  of      imprisonment imposed  on the accused on conviction must      be  during  the  investigation,  enquiry  or  trial  in      connection with  the ’same  case’ in  which he has been      convicted. We,  therefore, agree  with the  High  Court      that the  period during which the Writ Petitioners were      in preventive detention cannot be set off under section      428 against the term of imprisonment imposed on them". After holding  that the  period during which the petitioners therein were  in preventive  detention could  not ’set  off’ under Section  428 Code  of Criminal  Procedure against  the term of  imprisonment imposed  on them, the Court went on to consider whether  the period  during which  the  petitioners were  in  preventive  detention  could  for  any  reason  be considered as  period during  which the  petitioners were in detention as undertrial prisoners or prisoners serving out a sentence on  conviction. In  the case  of the prisoner A. V. Rao the  Court held that the period commencing from the date when he  would have  normally been  arrested pursuant to the First Information  Report registered  against him  should be reckoned as  period of  detention as an undertrial prisoner. In the  case of another prisoner Krishnaiah it was held that the period  during which  he  was  in  preventive  detention subsequent to  the conviction  and sentence imposed upon him should be  treated as  detention pursuant  to conviction and sentence. The  case before  us is  altogether different. The

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petitioner had  been acquitted  by the High Court before any of the  orders of detention were made against him. There can be  no   question  of  the  detention  being  considered  as detention pursuant  to conviction;  nor can the detention be treated as  that  of  an  undertrial.  It  is  only  in  the circumstances where  the prisoner  would have unquestionably been in  detention in  connection with a criminal case if he had not been preventively detained, his preventive detention might be  reckoned as detention as an undertrial prisoner or detention  pursuant  to  conviction,  for  the  purposes  of Section 428 Code of Criminal Procedure.      Shri Jethmalani  next contended that the petitioner had not   been  given an opportunity to argue on the question of sentence, that  is hardly  fair to us. A substantial part of the argument  of Shri Jethmalani on that occasion was on the question of sentence 65 and, in  the judgment  pronounced by us, we did consider the argument advanced  by the learned counsel on the question of sentence. It was also contended before us that the Court was not justified in holding that the petitioner was responsible for the  long delay  that had been caused in the disposal of the case and that the Court was wrong in holding that it was for the  accused to  show that he had been prejudiced by the delay. We see no merit in these contentions. The application for review  is therefore  dismissed. No  separate  arguments were advanced in the Writ Petition which is also dismissed. N.V.K.                                  Petitions dismissed. 66