CHAMPALAL POONAJI SHAHversusSTATE OF MAHARASHTRA

                                                                                ti
                     CHAMPALAt P00NJA1I SHAH
                                            v.
                        STATE OF MAHARASHTRA
                                 January 27, 1982

     [0. CHINNAPPA REDDY, A.P. SBN AND BAHARUL ISLAM, JJ.)
                                                                                       8

      Code of Criminal Procedure 1973, S. 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' agaiiist sentence of imprisonment.

      The Presidency Magistrate convicted the [!petitioner for offences under sec.
lion 120B of the Indian Penal Code read with section 135 of and Customs Act and
Rule 126P(2) (ii) and (iv) of the Deience of India Rules 1962 and sentenced him
to suffer imprisonment for various periods ranging from two years to four years
and t6 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        D
petitioner was alBo preventively detained for various periods first under the
Maintenance of Internal Security Act and afterwards under the Conservation of
Foreign Bi:chaoge and Prevention of Smuggling Activities Act 1974.

      Io the review petition and writ petition to this Court it was contended on
behalf of the petitioner that : (1) though ii was argued in the appeal to this Court
that the periods during which the petitioner had been preventively detained            E
should be 'set off' against the sentence of imprisonment imposed upon him this
cou~t· had not touched upon the point; and (2) this court's decision in Goyern-
ment of Andhra Pradesh and another v. Venkateswara Rao, AIR 1977 SC 1096,
 enabled the petitioner io 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 period of detention in Section 428,       G
Code of Criminal P'rocedure 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 tenp of imprison..
ment imposed on the accused on conviction must be during the investigatio_n,           H
enquiry, or trial in connection with the 'same case' in which he has been
convicted. (64 A-Bl
     62                        SUPREME COURT. REPORTS                [19821 3 s.c.i
A          (iii) Ooly in circumstances where the petitioner would have unquestionably
     been in detention in connection with a criminal case if he had not been preven·
     tively detained. his preventive detention might be reckoned as detCntion as an
     undertriitl prisoner or detention pursuant to conviction, for the puq~oses of
     Section 428, Code of Criminal Procedure 1973. [64 G]

            In the instant case the petitioner had been acquitted by the High Court
B    J:>efore any of the orders of detention were m.ade 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 undertriaJ. [64 F]

          ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 7207
     of 1981.
c           (Under Article 32 of tlie Constitution of India)

            Ram 'Jethmalani
                         .
                            and Miss Rani Jethmalani . for the Petitioner.

           The Judgment of the Court was delivered by

D          CHINNAPPA REDDY, J. This petition for review and the petition
     for the issue of Writ under Article 32 were argued by Sbri
     Jethmafani with; what appeared to us to be more than his customary
     vehemence and emotion. Nonetheless, we confess, we are not
     impressed.

E          By our judgment dated August 12, 1981 (1), we bad 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                       1.
     different beads of charges and sentencing him to suffer imprison·
     ment for various terms ranging from two years to four years and to
F'   the payment of fine of Rs. I 0,000/· on each of different counts.
     Shri Jethmalani contended that though he ha.d 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
G    upon him, we had not touched upon the point. He also drew our
     attention to a reference tci ·set off' in the written submissions given
     to us after the bearing 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 bis detention might be taken into
H
          (1) (1982] l SCR 299.
             tl!AM·PALAL v. MAfilRAslrtkA (Chinnappa Reddy, J.)        63
     account in considetlng the question of the appropriate sentence to       A
     be imposed on the petitioner, which · question was considered by us.
     But, we will 1et 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 the
     provisions of the MISA and later under the provisions                    B
     of the COFEPOSA. The periods of detention were Septeµiber
     17, 1974 to April 18, 1975, July I, 1975 to November 21,
     1975 and Ma.y 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        c
     had convicted the petitioner by bis 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
                                                                              D
     that the petitioner was then in preventive detention and it was
     directed that in case he was released from detention but rearrested 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        E
     of the three periods of detention should be "set off' against the
      sentence of imprisonment imposed upon him. He r:lied upon the
-+    decision of this Court in Govt. of Antlhra Pradesh & Anr. v. Anne
.•
     Venkateswara Rao etc. etc.( 1)

           We are . unable to agree with the submission of Sbri               F
     Jethmalani. · Jn 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 :
                                                                              G
                "It .is true that the section speaks of the period of
           detention undergone by an accused person, but it ex-
           pressly says that the detention mentioned refers to the
           detention during the investigation, enquiry or trial of the
                                                                              H
          (I) AIR 1977 SC to96-[1977] 3 SCR 7.
                            SUPREM• COURT REPORTS           [1982] 3 s.c.tt.

A         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,
B         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
c    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
D
    sentence on conviction. In the case of the prisoner A. V. Rao the
    Court held that the period commencing from the date when be.
    would have normally been arrested pursuant to the First Informa-
    tion Report registered against him should be reckoned as period of
    detention as an undertrial prisoner. In the case of another pri-
E   soner Krishnaiab it was held that the period during which be 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 petitioner bad been acquitted by the High Court before any of
    the orders of detention were made against him. There can be no
F   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 unques-
    tionably been in detention in connection with a criminal case if be
    bad not been preventively detained, his preventive detention might
    be reckoned as detention as an undertrial prisoner or detention
G   pursuant to conviction, for the purposes of Section 428 Code of
    Criminal Procedure.

          Shri Jethmalani next contended that the petitioner had not
    been give!' an opportunity to argue on the question of sentence.
H   That is hardly fair to us. A substantial part of the argument of
    Shri Jethmalani on tilat occasion was on the question of sentence
       dEIAMPALAL v. MAHARA~HTRA (Chinnappa keddy, J.)          65

and, in the judgment pronounced by us, we did consider the argu- ·     A
ment 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 be had
been prejudiced by the delay. We see no merit in these contentions.    B
The application for review is therefore dismissed. No separate argu-
ments were advanced in the Writ Petition which is also dismissed.


N.V.K.                                          Petitions dismissed.
                                                                       c