Judgment Dibyendu Bhusan Dutta, J. 1. Bowbazar P.S. Case No. 401 dated 13.12.92 under Ss. 3 and 4 of the West Bengal Gambling and Prize Competition Act, 1957 was registered against as many as 34 persons including the petitioner. The petitioner obtained an anticipatory bail from the Court of Chief Judge, City Civil and Sessions Court, Calcutta, on 12.1.93. in connexion with that case. Subsequently on 17.3.93, the petitioner was arrested in connexion with another case of Bowbazar P.S. being No. 84 under Ss. 120B/436/326/307/302 of Indian Penal Code, Ss. 3 and 4 of Explosive Substance Act and TADA Act 1993 and since then the petitioner has been in custody. After completion of the investigation of the earlier case, that is to say, the Case No. 401 challan was submitted on 22.7.93 against the petitioner under s. 3 of the West Bengal Gambling and Prize Competition Act. In the said challan the investigating agency prayed for issuance of production warrant against the petitioner for coming his production in connexion with the said case, stating categorically the fact that he was arrested on 17.3.93 in connexion with the latter case (Case No. 84 dated 17.3.93) and was lodged in Central Jail. But the ld. Magistrate while taking cognizance on the basis of the said challan, by his order dated 22.7.93, declared the petitioner to be an absconder and issued warrant of arrest against him. On 3.12.93, the warrant of arrest returned unexecuted and the Id. Magistrate issued proclamation against the petitioner. On 7.2.94 and 22.4.94 it was detected that proclamation was not actually issued for want of prescribed form. On 22.8.94, fresh warrant was issued against the petitioner and when the warrant of arrest returned unexecuted on 25.11.94 with a report that the petitioner had been lodged in the Central Jail in connexion with the latter case referred to above, the ld. Magistrate issued production warrant and on the basis of this production warrant, the petitioner was produced before the Ld. Magistrate in connexion with the earlier case only on 14.2.95. On 14.12.95, charge was framed against the petitioner under s. 3 of the West Bengal Gambling and Prize Competition Act and the petitioner pleaded not guilty. Thereafter, several witnesses have been examined and the concerned proceeding being G.R. Case No.7 of1993 is now pending trial before the 7th Court of Metropolitan Magistrate, Calcutta. On 14.12.95, charge was framed against the petitioner under s. 3 of the West Bengal Gambling and Prize Competition Act and the petitioner pleaded not guilty. Thereafter, several witnesses have been examined and the concerned proceeding being G.R. Case No.7 of1993 is now pending trial before the 7th Court of Metropolitan Magistrate, Calcutta. The petitioner, on filing the instant application under s. 482 of the Code of Criminal Procedure, 1973 has prayed for quashing the said proceeding. Virtually, two grounds were urged on behalf of the petitioner for quashing the proceeding. 2. First, it is urged that the orders of the Id. Magistrate for issuance of warrant of arrest as well as proclamation were bad and illegal and by reason of such illegality itself, the proceeding is liable to be quashed. The second ground that has been urged on behalf of the petitioner may be elaborated as follows. Had the ld. Magistrate applied his mind to the challan that was submitted on 22.7.93, he would have no other alternative than to issue a production warrant for causing production of the petitioner from the Central Jail in which he was stated to have been lodged in connexion with the other case No. 84 dated 17.3.93. Had production warrant been issued by the Magistrate on 22.7.93, the date on which he took cognizance, the petitioner would have been produced before the Magistrate within a short period from that date and would have been shown arrested and detained in connexion with this case. But, because of non-application of mind on the part of the ld. Magistrate and for no fault on the part of the petitioner, instead of production warrant the ld. Magistrate ordered issuance of warrant of arrest despite the categorical disclosure in the challan to the effect that the petitioner was lodged in the Central Jail in connexion with Bowbazar P.S. Case No. 84 dated 17.3.93. This mistake was multiplied by subsequent orders for issuance of proclamation and also for issuance of fresh warrant of arrest till 22.8.94 and it was only when the fresh warrant of arrest returned unexecuted on 22.11.94 with a report that the petitioner was in Central Jail having been detained in connexion with the case No. 84 dated 17.3.93 that the Id. Magistrate sought to rectify the mistake and issued production warrant on the basis of which the petitioner was ultimately produced and shown arrested and detained in connexion with the present case with effect from 14.2.95. Now, the right to set off provided under s. 428 of Cr. PC is a legal right and the petitioner cannot be deprived of such right which would have otherwise been admissible to him in relation to the period commencing within a few days from 22.7.93, the date of submission of challan, and ending on 14.2.95, the date on which he was ultimately produced in connexion with this case. Had the ld. Magistrate been careful enough to apply his mind to the contents of the challan he would have issued production warrant on 22.7.93, the very date on which the challan was placed before him and he took cognizance. In other words, his detention in connexion with the second case during the period, say, from early August 1993 to 14.2.95 should also be deemed to be his detention for the purpose of the earlier case. In that event, the benefit of s. 428 Cr.PC can be extended to him in relation to the aforesaid period. Now, the offence with which the petitioner stands charged in the earlier case is punishable with a maximum term of imprisonment for three years with the result that the period of detention of the petitioner in connexion with the concerned case should have to be reckoned from early part of August 1993 and could be counted for the set off under s. 428 Cr.P.C. and the petitioner can be said to have virtually served out the maximum sentence that might be imposed in the event of a conviction in this case. In the circumstances, further continuance of the trial would be only of acadamic interest. That being so, the impugned proceeding should be quashed in the interest of justice and should not be allowed to be proceeded with any further. 3. The application under s. 482 Cr.PC was opposed on behalf of the State. As regards the first ground urged on behalf of the petitioner, the ld. Counsel appearing for the State did not, however, justify the magisterial orders that were issued for issuance of warrant of arrest as well as proclamation. He was frank enough to concede that there was non-application of mind on the part of the Id. As regards the first ground urged on behalf of the petitioner, the ld. Counsel appearing for the State did not, however, justify the magisterial orders that were issued for issuance of warrant of arrest as well as proclamation. He was frank enough to concede that there was non-application of mind on the part of the Id. Magistrate when he ordered issuance of warrant of arrest after having taken cognizance on the basis of the challan that was submitted on 22.7.93 and again when he ordered issuance of proclamation as well as fresh warrant of arrest against the petitioner. But then, according to the ld. Counsel for the State, mere illegality of the said orders for issuance of warrant of arrest and proclamation would not vitiate the proceeding and the same cannot be quashed merely because of such illegality in the said orders relating to warrant of arrest and proclamation. So far as the second ground is concerned, it is submitted on behalf of the Opposite Party that the period of detention that would be available for set off in connexion with the instant proceeding would commence from 14.2.95, the date on which the petitioner was actually produced on the basis of the production warrant in connexion with this case and that the period of his detention in connexion with the second case prior to the date of his production in connexion with the earlier case would not be admissible for set off against the term of imprisonment that might be imposed in the instant case. Moreover, it is contended on behalf of the Opposite Party that the question of any set off cannot be gone into at this stage and is wholly premature. Such a question can arise only after the conclusion of the trial and that too in the event of a conviction. At any event, there is absolutely no valid ground for quashing the proceeding. The instant application according to the ld. Counsel for the state, is mis-conceived and should accordingly be dismissed. 4. Admittedly, the petitioner obtained an order of anticipatory bail on 12.1.93 in connexion with the first case (Case No. 401 dated 31.12.92) that gave rise to the impugned proceeding. Now, the grant of anticipatory bail under s. 438 Cr.PC did neither ban his arrest by the investigating agency nor obligate any surrender by the petitioner. 4. Admittedly, the petitioner obtained an order of anticipatory bail on 12.1.93 in connexion with the first case (Case No. 401 dated 31.12.92) that gave rise to the impugned proceeding. Now, the grant of anticipatory bail under s. 438 Cr.PC did neither ban his arrest by the investigating agency nor obligate any surrender by the petitioner. In the event of his arrest, he was entitled to be released on bail on the terms and conditions on which such bail was granted. The fact remains that the investigating agency did not arrest him in connexion with the case concerned during the period from 12.1.93 on which he was granted anticipatory bail and 17.3.93, the date on which he was arrested in connexion with the second case (Case No. 84 dated 17.3.93). Admittedly, since his arrest in connexion with the second case, the petitioner had been in Central Jail in connexion with that case and the investigating agency of the earlier case while submitting the challan in connexion with the earlier case after completion of the investigation categorically disclosed the fact that the petitioner was in jail in connexion with the second case and prayed for issuance of production warrant in order to ensure his production in connexion with the earlier case. It goes without saying that the ld. Magistrate overlooked this fact and ordered on 22.7.93 issuance of non-bailable warrant of arrest against the petitioner declaring him as an absconder. Such a declaration was obviously without any foundation and there was really no occasion for issuance of non-bailable warrant of arrest. Moreover, under s. 438( 3), it is obligatory upon a Magistrate taking cognizance to issue a bailable warrant in conformity with the direction of the Court Jor grant of anticipatory bail in case he decides that a warrant should be issued in the first instance. At any event, the orders that were passed by the ld. Magistrate for issuance of warrant of arrest are not legally sustainable. Similar is the case with his orders for issuance of proclamation because proclamation can be issued only if the mandatory conditions of s. 82(1) of Cr.PC are fulfilled and in the instant case, it cannot be said that the Court had reason to believe that the petitioner had absconded and was concealing himself so that warrant could not be executed. Similar is the case with his orders for issuance of proclamation because proclamation can be issued only if the mandatory conditions of s. 82(1) of Cr.PC are fulfilled and in the instant case, it cannot be said that the Court had reason to believe that the petitioner had absconded and was concealing himself so that warrant could not be executed. Thus, the magisterial order for issuance of proclamation is also not sustainable in law. But then, the mere fact that the orders for issuance of warrant of arrest and proclamation were not legally sustainable cannot, in my view, warrant a conclusion that the cognizance itself was bad or for that matter, the trial that is going on is vitiated or is liable to be quashed. Indeed, the ld. Counsel appearing for the petitioner did not really argue for quashing the impugned proceeding only on the basis of the ground that the magisterial orders that were passed for issuance of warrant of arrest and proclamation after the cognizance was taken and before the trial commenced were bad and illegal. The ld. counsel for the petitioner really banked upon the second ground that was urged for quashing the proceeding. 5. This ground is real1y based on the principle of set off as envisaged under s. 428 of the Code of Criminal Procedure 1973. Now, no such provision was there in the old Code and when the old Code was in force, it was found that many persons were detained in prison at the pre-conviction stage for unduly long periods, many times for periods longer than the actual sentence of imprisonment that could be imposed on them on conviction. In order to remedy this unsatisfactory state of affairs that s. 428 was introduced in the present Code. It provides for the setting off of the period of detention of an under-trial prisoner against the sentence of imprisonment imposed on him. In order to remedy this unsatisfactory state of affairs that s. 428 was introduced in the present Code. It provides for the setting off of the period of detention of an under-trial prisoner against the sentence of imprisonment imposed on him. Under this section, if an accused, on conviction, is sentenced to imprisonment for a term, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction is liable to be set off against the term of imprisonment imposed on him on such conviction and the liability of such person to undergo imprisonment on conviction shall be restricted to the remainder if any, of the term of imprisonment imposed on him. If the conditions laid down by the section are satisfied, the Court has no option to refuse to grant set off. Admittedly, the petitioner was physically produced before the learned Magistrate for the first time on 14.2.95 in connexion with the present case on the basis of a production warrant issued on 25.11.94. Admittedly, since that date of his production in connexion with this case the petitioner is being detained in connexion with this case. The fact that the period of his detention in connexion with this case commencing from 14.2.95, the date on which he was actually produced before the Magistrate would be counted for set off as against the term of imprisonment that may ultimately be imposed against him in the event of his conviction in this case is not at all disputed on behalf of the State. The dispute that has been raised on behalf of the State relates to the period of detention of the petitioner in connexion with the second case from 22.7.93, the date of taking cognizance in the second case, and 14.2.95, the date of production in connexion with this case. This dispute can be resolved on the basis of two decisions that were cited on behalf of the petitioner. One of them is a decision of the Supreme Court in the case of Government of A.P. vs. A.v. Rao reported in AIR 1977 SC 1096 and the other is a Full Bench decision of Allahabad High Court reported in 1982 Cr.LJ 1757 in the case of Shabbu vs. State of u.P. which was based on the aforesaid Supreme Court decision. 6. 6. In the Supreme Court case it has been held that s. 428 only provides for "set off' and that it does not equate any "under-trial detention or remand detention" with "imprisonment on conviction". It was further held in the Supreme Court decision that the "period of detention" which s. 428 allowed to be set of against the term of imprisonment imposed on the accused on conviction must be during the investigation inquiry or trial in connexion with the "same case" in which he has been convicted and that the period during which there was detention under the Preventive Detention Act could not be set off under s. 428 against the term of imprisonment imposed on them on the conviction for offences under the Penal Code. Relying on this decision, the Allahabad High Court held: "Whether or not the detention of a person in one case should also be treated to be his detention for the purposes of any other case, wherein he is wanted, is a question to be decided upon the facts and circumstances of each case. No set formula can be laid down in that behalf. If the facts and circumstances of a particular case indicate that a person already detained in one case was also subsequently wanted in another case and he was not formally detained in that other case on account of the negligence of the concerned authorities, and for no fault of his, he can, with all justification, claim that his detention in the earlier case should also be deemed to be his detention for the purposes of the second case. In that event, benefit of s. 428 Cr.PC can be extended to him." 7. In the facts and circumstances of this case as narrated above, there would be no escape from the conclusion that the petitioner was not formally detained in connexion with the present case on account of the negligence of the concerned authorities for no fault of his, at least during the period that commenced shortly after 22.7.93, the date on which the production warrant was asked for by the investigating agency and 14.2.95, the date on which he was formally produced and detained in connexion with this case. The detention in connexion with the latter case which was registered under IPC, ES Act and TADA Act, was not a preventive detention so as not to attract the provisions of s. 428 Cr.P.C. As such, relying on the Supreme Court and the Allahabad High Court decisions referred to above, the petitioner's detention in connexion with the latter case during the period from August 1993 to 14.2.95 may also be deemed to be his detention for the purposes of the earlier case so as to be counted for the benefit of set off that would be available under s. 428 Cr.PC. 8. In such view of the matter, the total period of set off that may ultimately be admissible to the petitioner uptill now could be around three years and five months. Now, an offence under s. 3 of the West Bengal Gambling and Prize Competition Act, 1957, is punishable with not only imprisonment for a term which may extend to three years, but also with fine. Under s. 65 of the Indian Penal Code, where the offence is punishable with imprisonment as well as fine, the term of imprisonment in default of payment of fine is not to exceed one fourth of the term of imprisonment which is the maximum fixed for the offence. In other words, the term of imprisonment they may be imposed in default of payment of fine is likely to be nine months and s. 428 Cr.PC applies only to the substantive sentence of imprisonment and not to imprisonment in default of fine. As such, the petitioner would not at all be entitled to any set off against the imprisonment that may be imposed on him in default of payment of fine. Now, this Court is not a Trial Court. The trial is yet to conclude before the learned Magistrate and the question of set off will really arise only in the event of a conviction. It may so happen that the learned Magistrate may find the petitioner not guilty and acquit him. If that be so, there would be no occasion for consideration of the question of set off under s. 428 Cr.PC. It may so happen that the learned Magistrate may find the petitioner not guilty and acquit him. If that be so, there would be no occasion for consideration of the question of set off under s. 428 Cr.PC. The question of set off invariably pre-suppose the existence of an order of conviction and consideration of the question of entitlement of set off by this Court at this stage when the trial is still continuing would mean assumption by this Court that there has been a conviction which has not been challenged. 9. In the facts and circumstances of this case, I have no hesitation to accept the contention that was put forward on behalf of the State opposite party that the question of set off that has been agitated on behalf of the petitioner is really premature and cannot be legally gone into at this stage. Indeed, for the reasons stated above, I find no sufficient ground for quashing the impugned proceeding. In the result, the application fails. The application under s. 482 Cr.PC is accordingly dismissed. Application dismissed.