MONOJ KUMAR MUKHERJEE, J. ( 1 ) THE question which requires an answer in this Rule is whether a person undergoing imprisonment, on his conviction by the Security Force Court under the Border Security Force Act 1968 ('act' for short), is entitled to the benefit of S. 428 of the Cr. P. C. 1973 (hereinafter referred to as the 'code ). The question arises in this way. ( 2 ) ANAND Singh Bisht, the petitioner herein, was a member of the Border Security Force and as such was subject to the Act and the rules made thereunder. On May 13, 1984 he was arrested and detained in the custody of Border Security Force (BSF for short) for alleged commission of an offence under S. 307 of the I. P. C. read with S. 46 of the Act. He was tried for the said offence by the Security Force Court, constituted under the Act, and was convicted and sentenced to suffer imprisonment for one year. After the findings and the sentence of the said Court were confirmed by the Inspector General of BSF, the respondent 2 herein, in accordance with the Act on May 20, 1985, he was removed from the custody of BSF and lodged in Berhampore Central Jail to serve out the sentence. Thereafter he filed a petition under Art. 226 of the Constitution contending that the period of detention undergone by him prior to his conviction as undertrial prisoner must be set off under S. 428 of the Code, against the sentence imposed upon him and praying for his release forthwith as, according to him, the period of his pre-conviction detention was more than one year. On that petition the present Rule nisi for a Writ of Habeas Corpus was issued. ( 3 ) WHILE showing cause against the Rule Nisi, the BSF authorities did not dispute that the petitioner was in detention for more than one year as an undertrial prisoner but they contended that the Act was a special law within the meaning of S. 5 of the Code and therefore in view of the provision of the said section of the Code and for that matter, the provision of S. 428 thereof would not be applicable. According to them, there was also no provision either in the Code or in the Act to indicate that S. 428 of the Code was "a specific provision to the contrary" within the meaning of S. 5 of the Code so as to make it applicable. In support of the above contentions reliance was placed upon the decision of Delhi High Court in the case of F. R. Jesuratnam v. Chief of Air Staff, reported in 1976 Cri LJ 65, and the decisions of the Madras High Court in the cases of P. P. Chandrasekharan v. Govt. of India, reported in 1977 Cri LJ 677 and T. S. Ramani v. Supdt. of Prisons, Madras reported in 1984 Cri LJ 892. ( 4 ) ON behalf of the petitioner it was however urged that though the Act was a special law within the meaning of S. 5 of the Code, there was no provision in the Act which militated against the applicability of S. 428 of the Code. Reliance was placed on behalf of the petitioner on the judgment of the Kerala High Court in the case of Subramoniam v. O. C. Armoured Static Workshop, reported in 1979 Cri LJ 617, in support of the above contention. ( 5 ) S. 5 of the Code, from which the present controversy stems, reads as under : -"saving : - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. " ( 6 ) IN interpreting S. 5 in the case of Maru Ram v. Union of India, reported in AIR 1980 SC 2147 , the Supreme Court observed as under :"the anatomy of this saying section is simple, yet subtle. Broadly speaking there are three components to be separated. Firstly, the procedure code generally governs the matters covered by it. Secondly, if a special or local law exists covering the same area (emphasis ours) this latter law will be saved and will prevail. . . . . . . . . . . . . . . . . . Now comes the third component which may be clinching. Firstly, the procedure code generally governs the matters covered by it. Secondly, if a special or local law exists covering the same area (emphasis ours) this latter law will be saved and will prevail. . . . . . . . . . . . . . . . . . Now comes the third component which may be clinching. If there is a specific provision to the contrary, then that will override the special or local law. " ( 7 ) THE ratio decidendi of all the three cases, cited on behalf of the respondents and quoted earlier, is that when there is a special law, as contemplated by S. 5 of the Code and it prescribes an elaborate procedure for conducting a trial and for execution of sentences, the Code does not 'apply. ' We regret our inability to accept the above reasoning having regard to the plain meaning of the word 'affect' appearing in S. 5 and the earlier quoted interpretation given by the Supreme Court to S. 5. S. 5 nowhere provides that if there is a special law the Code will not 'apply', but it says that the Code shall not 'affect' the special law, unless there is a specific provision to the contrary. 'affect' means to produce a material influence upon or alteration in; to prejudice; to override. In the context of the plain meaning of the word 'affect' and the interpretation given by the Supreme Court to S. 5 of the Code, we have now to ascertain whether any provision of the Act or the Rules made thereunder 'affects' S. 428 of the Code and if it 'affects', whether S. 428 is a specific provision to the contrary. ( 8 ) RELYING upon S. 120 of the Act, and the decision in the case of P. P. Chandrasekharan (1977 Cri LJ 677) (Mad) (supra) it was contended on behalf of the respondents that the Act provided for a specific procedure for execution of sentences and consequently S. 428 of the Code could not be made applicable to a sentence passed under the Act. We do not find any substance in this contention. We do not find any substance in this contention. S. 428 of the Code provides that where an accused person has on conviction been sentenced to imprisonment for a term, the period of detention, if any, undergone by him during the investigation, enquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, on the term of imprisonment imposed on him. S. 120 of the Act only says that the sentence of imprisonment to be imposed under the Act by a Security Force Court shall be reckoned to commence on the day on which the original proceedings were signed by the Presiding Officer or in the case of a Summary Security Force Court, by the Court. When read in juxtapositions, S. 428 of the Code and S. 120 of the Act cannot be said to be operating in the same area nor does the former influence or override the latter. While S. 120 of the Act specifies the date of commencement of the sentence, S. 428 of the Code speaks about the manner of calculation of the period of sentence to be served. In the case of P. P. Chandrasekharan (supra) the Madras High Court held that in view of S. 151 of the Navy Act - which is pari materia with S. 120 of the Act - S. 428 Cr. P. C. and for that matter the Code was inapplicable. We regret our inability to accept the above reasoning for our earlier discussion. On the contrary, we are in complete agreement with the judgment of the Kerala High Court in the case of Subramonium (1979 Cri LJ 617) (supra) which held that the beneficent provision of S. 428 of the Code was available to a person detained under the Army Act - provisions of which are similar to the provisions of the Act - since the granting of set off that section did not affect the conviction or sentence for an offence under the Penal Code made by the General Court Martial. ( 9 ) IT was also contended on behalf of the respondents that R. 151 framed under the Act expressly provided that before sentencing a convict his undertrial detention was required to be considered and when lenient sentence was passed taking into account his past detention, the petitioner could not again claim the benefit of S. 428 Cr. P. C. We need not discuss and decide for ourselves as to how far this contention is justified, having regard to the following observation of the Supreme Court in the case of B. P. Andre v. Supdt. , Central Jail, reported in AIR 1975 SC 164 . In refuting a similar contention the Supreme Court observed as under :"section 428 is absolute in its terms. It provides for set-off of the pre-conviction detention of an accused person against the term of imprisonment imposed on him on conviction, whatever be the term of imprisonment imposed and whatever be the factors taken into account by the Court while imposing the term of imprisonment. It does not say that where the pre-conviction detention of an accused person has already been taken into account by the Court while imposing the term of imprisonment on conviction, no set-off of such pre-conviction detention shall be permitted, and if the legislature has not introduced any such exception, the Court cannot read it into the section by a process of judicial construction. " ( 10 ) BESIDES referring to the above provisions of the Act and the Rules no other provision has been brought to our notice wherefrom we can say that S. 428 of the Code cannot co-exist with the provisions of the Act. In other words, there is no provision in the Act or the Rules which operates in the area of S. 428 of the Code so as to override the latter and as such it must be held that the beneficent provision of S. 428 of the Code is fully and totally/applicable to sentences imposed under the Act. Since S. 428 of the Code does not 'affect' the Act, the question whether this section is a 'specific provision to the contrary' within the meaning of S. 5 of the Code is redundant. ( 11 ) FOR the foregoing discussion, the application succeeds and the Rule is made absolute. We direct that the petitioner be released forthwith. Since S. 428 of the Code does not 'affect' the Act, the question whether this section is a 'specific provision to the contrary' within the meaning of S. 5 of the Code is redundant. ( 11 ) FOR the foregoing discussion, the application succeeds and the Rule is made absolute. We direct that the petitioner be released forthwith. ( 12 ) BEFORE parting with this judgment we must place on record our deep appreciation for the valuable assistance rendered by Sri Balai Chandra Roy, the learned Senior Advocate, who appeared in this case as amicus curiae. ( 13 ) THE oral prayer of the respondents to stay operation of the order is refused. SANKAR BHATTACHARYYA, J. :- I agree. Rule made absolute.