Order: 1. The simple question for consideration in this petition under S. 482 of the Code of Criminal Procedure is whether under any circumstance the period of preventive detention could be set off under S. 428 of the Code against the term of imprisonment imposed on a person. 2. Petitioners were arrested in connection with an offence punishable under S. 135(1)(i) of the Customs Act, 1962 and they were in judicial custody eversince on the basis of orders of remand by the Additional Chief Judicial Magistrate, Economic Offences, Ernakulam. Thereafter the complaint filed by the Assistant Collector, Central Excise. Trivandrum against them and seven others was taken to file by the Magistrate as C.C. No. 71 of 1985. While they were thus in judicial custody pending investigation and subsequently pending trial orders were issued against them under S.3 of the COFEPOSA and served on 17-6-1985. They were ordered to be in preventive detention in the same Central Prison. While so their trial in C.C.No.71 of 1985 was being continued and they were being periodically produced in court and remanded. Finally on 3-3-1986 they were convicted and sentenced to imprisonment for two years each Judgment provided that the period during which they were in remand during investigation and as undertrial prisoners will be set-off against the term of imprisonment under S.428. Orders of detention under the COFEPOSA was quashed on 5-1-1987, but they continued to be in jail. The question is whether the period from 17-6-1985 upto’5-1-1987 when they were also preventive detention could be included in the set off under S.428. 3. What S. 428 of the Code says is that when a person is sentenced on conviction to a term of imprisonment, the period of detention undergone by him during the investigation, inquiry or trial in the case in which he was convicted and sentenced and before the date of such conviction, shall be set off against the term of imprisonment and his liability shall be restricted to the remainder of the term of imprisonment. The section is very clear and unambiguous. What is allowed as set-off prior to the conviction and sentence is only the period of detention during investigation, inquiry or trial in the said case. The Section is inserted in the new Code to mitigate the evils of delayed trials, to prevent overcrowding in jails and to uphold public interest. The section is very clear and unambiguous. What is allowed as set-off prior to the conviction and sentence is only the period of detention during investigation, inquiry or trial in the said case. The Section is inserted in the new Code to mitigate the evils of delayed trials, to prevent overcrowding in jails and to uphold public interest. The provision is mandatory and not discretionary and it is available even to persons who are sentenced before the new Code came into force, but the sentence is still running. This Section does not equate pre-conviction detention with imprisonment on conviction and does not do away with the difference in the two kinds of detention and put them on the same footing for all purposes. It only provides for a set off. The Section is in absolute terms and set off cannot be refused even on the ground that pre-conviction detention was taken into account in exercising the sentencing discretion. Since the Section speaks in unambiguous terms that detention mentioned therein refers only to the detention during the investigation, inquiry or trial in connection with the ‘same case’ in which the accused person has been convicted, the period during which he was in preventive detention under the MISA or COFEPOSA cannot be set off under S.428 against the term of imprisonment imposed on him. 4. Then the question that arises for consideration is whether the period during which the petitioners were in preventive detention could for any reason be considered as period during which they were in detention as undertrial prisoners or persons serving out a sentence on conviction or prisoners during investigation. It is true that the preventive detention period cannot be considered as detention pursuant to conviction or detention as that of an undertrial. But there can be no preventive detention, punitive detention and detention during investigation, enquiry or trial coinciding and continuing simultaneously. There is no prohibition in that connection in the Code of Criminal Procedure , in the Preventive Detention Act , in the MISA and COFEPOSA. Instances of such detentions coinciding cannot be ruled out. There is no provision which says that punitive or undertrial detention could be had only after preventive detention is over or vice versa. There is no prohibition in that connection in the Code of Criminal Procedure , in the Preventive Detention Act , in the MISA and COFEPOSA. Instances of such detentions coinciding cannot be ruled out. There is no provision which says that punitive or undertrial detention could be had only after preventive detention is over or vice versa. No provision of law says that a person under preventive detention should not be served with a warrant from criminal court or that he should not be produced before a criminal court and remanded under its orders. So also nothing prevents an under-trial prisoner or a convict being served with a preventive detention order. Law allows and courts have got the discretion to allow a convict to suffer various terms of imprisonment simultaneously or concurrently. In such a situation even though the convict suffers only one term of imprisonment it satisfies imprisonment on other counts also and it could also count for undertrial imprisonment. What S.418 of the Code of Criminal Procedure provides is that if the accused who is sentenced to imprisonment is in jail the warrant shall forthwith be forwarded to the jail. It does not exclude a case where the warrant concerns an accused who is already in detention whether it be punitive, preventive or as an undertrial Even though the nature of preventive detention is entirely different from punitive or undertrial detention there is no bar to a man being under preventive detention when a criminal proceeding and detention based on it is pending. In such cases while deciding the question of set off under S.428 the consideration should be whether the prisoner would have unquestionably been in detention in connection with a criminal case if he had not been preventively detained. If the answer is in the positive the preventive detention might be reckoned as detention as a undertrial prisoner or detention pursuant to conviction, as the case may be, for the purpose of S.428 , the reason being that but for the preventive detention he would definitely have been in punitive or undertrial detention which would have counted for set under S.428. There is no law which says that even in such a situation the period of preventive detention will have to be totally excluded. 5. In the case in hand the position of the petitioners is much better. There is no law which says that even in such a situation the period of preventive detention will have to be totally excluded. 5. In the case in hand the position of the petitioners is much better. They were prisoners during investigation and they continued to be under-trial prisoners when the trial started. That imprisonment was not terminated and they were not released on bail. It was during such imprisonment that the preventive detention order was served on them Even after the preventive detention order was served on them they continued in the same jail. They were being produced before court for trial and remanded by orders of court. It was while they were suffering the punitive detention from court that the preventive detention expired. Thereafter also they continued in jail without any change. The question that but for the preventive detention they would not have been in jail as prisoners during investigation, trial or after conviction does not arise at all because it was actually otherwise. Therefore there is no dispute regarding the fact that even with out the preventive detention they were actually in jail suffering imprisonment which will count for set-off under S.428. 6. Government of Andhra Pradesh v. A.V. Rao Government of Andhra Pradesh v. A.V. Rao (1977) Crl.L.J. 935: (1977), 3 S.C.C. 298: (1977) S.C.C. (Crl.) 508: (1977) 3 S.C.R. 7 : A.I.R. 1977 S.C.1096.) is a case in which one of the convicts was in preventive detention when the F.I.R. in the criminal case in which he was subsequently convicted along with other was laid. In that case it was held mat the position would not be anomalous if person were in detention both under the preventive detention and as a convicted accused in a criminal case, because there could be no bar to preventive and punitive detections continuing simultaneously. It was further held therein: “Nothing has been pointed out to either in the preventive detention law or the Code of Criminal Procedure which can be said to be a bar to such a course, (to produce the person in preventive detention before court when the first information against him was laid). It was further held therein: “Nothing has been pointed out to either in the preventive detention law or the Code of Criminal Procedure which can be said to be a bar to such a course, (to produce the person in preventive detention before court when the first information against him was laid). That being so we think that the claim that the entire period and December 19.1969, when many of the co-accused were produced before the Magistrate, to April 18,1970 should be treated as part of the period during which Rao was under detention as an undertrial prisoner, must be accepted as valid”. In Shambu Kuer v. State of Bihar In Shambu Kuer v. State of Bihar (1982) S.C.C. (Cri) 264: (1982) Crl.L.J. 1742(2): (1982) 1 S.C.C. 436 : (1982) S.C.C. (Crl.) 264: A.I.R. 1982 S.C 1228. also the Supreme Court said that in the circumstances where the prisoner had unquestionably been in detention in connection with a criminal case if he had not been preventively detained, his preventive detention might be reckoned as detections as under-trial prisoner, or detention pursuant to conviction, for the purpose of S. 428. The case of the petitioners stand on a far higher footing than those tow cases because it is not necessary to consider possibilities of detention on account of the reality that they were already in detention and the period is were allowed to be set off. 7. The Crl. M.C. is therefore allowed and the respondents are directed to reckon the period of detention of the petitioners under the COFEPOSA for the purpose of allowing set off under S. 428 of the Code along with the other periods during which also they were in jail during investigation and trial. Petition allowed.