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2003 DIGILAW 252 (HP)

SANJIV KUMAR SANJU v. STATE OF H. P.

2003-08-29

A.K.GOEL, M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This petition has been preferred by the applicant/convict (hereafter referred to as the applicant) for issuing appropriate directions to the concerned authorities of the respondent/State to release him from Jail. 2. The facts relevant for the purpose of disposal of this petition are that the applicant was tried by the learned Sessions Judge, Una on a charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereafter referred to as the Act) and was sentenced to rigorous imprisonment for 10 years and fine of Rs. 1,00,000 and in default of payment of fine to undergo further rigorous imprisonment for one year vide judgment dated 5.7.2001. 3. The applicant preferred Criminal Appeal No. 441 of 2001 against the aforesaid conviction and sentence which was partly allowed by this Court vide judgment dated 24.6.2003 in the following terms :— "While maintaining the conviction of the accused for the offence under Section 18, NDPS Act, the sentence imposed upon him by the learned trial Court is modified and reduced to rigorous imprisonment for two years and fine of Rs. 25,000. In default of payment of fine, the accused shall undergo rigorous imprisonment for a further period of 6 months." 4. The applicant filed the present application for direction to release him from custody on the ground that he had been in custody since 11.9.2000 and the substantive terms of imprisonment of two years awarded to him ended on 10.9.2002 and the further imprisonment of six months in default of payment of fine started running from 11.9.2002 and ended on 11.3.2003. However, the applicant had been on parole for about four months, therefore, after taking into account the said period of parole he was entitled to be set at liberty on or before 15.7.2003 but he is being detained in custody despite requests for release to the concerned authorities. The act of detaining him in custody after 15.7.2003 is not only illegal and wrong but also against the judgment of this Court, hence, the petition. 5. The respondent/State (hereafter referred to as the State) contested the petition. In its reply, the State raised the preliminary objection that the applicant has concealed material facts and has not approached this Court with clean hands with a view to get undue benefit. 5. The respondent/State (hereafter referred to as the State) contested the petition. In its reply, the State raised the preliminary objection that the applicant has concealed material facts and has not approached this Court with clean hands with a view to get undue benefit. On merits, while admitting the factual aspects of the matter, as alleged, it has been clarified that the parole period availed off by the applicant was of 125 days which cannot be calculated as the period of imprisonment. It has further been claimed that the concerned Jail officials in not releasing the applicant from custody have acted as per law, rules and the judgment of the Sessions Judge, Una and that the pre trial period of custody cannot be set off against the imprisonment to be served out for default of payment of fine and in view of the judgment of this Court the imprisonment in default of payment of fine will start running from 24.6.2003 i.e. the date of the judgment. Thus, the claim for release, as made by the applicant, has been denied. 6. We have heard the learned Counsel for the applicant and the learned Additional Advocate General for the State. 7. It was contended by the learned Counsel for the applicant that after setting off the period of pre-trial detention the substantive term of imprisonment awarded to the applicant by this Court expired on 10.9.2002. Since the applicant has availed himself of about four months parole, therefore, taking into account the parole period the substantive term of imprisonment will expire on 9.1.2003 and from 10th of January, 2003 the period of imprisonment for default of payment of fine had started running and such term would have expired on 9.7.2003. The applicant, thus, was entitled to be released from custody on 10.7.2003 and in case he has availed himself of a period of parole of more than four months then after due adjustment of such period over and above the period of four months he was definitely entitled to be released from custody by or before 15.7.2003. It is, therefore, urged by the learned Counsel for the applicant that after 15.7.2003 the applicant is being detained illegally and is entitled to be released from custody forthwith. 8. It is, therefore, urged by the learned Counsel for the applicant that after 15.7.2003 the applicant is being detained illegally and is entitled to be released from custody forthwith. 8. Per contra, the learned Additional Advocate General contended that under Section 428 of the Code of Criminal Procedure (hereafter referred to as the Code) the period of custody of the applicant during investigation and trial can be set off only against the substantive term of imprisonment and such period cannot be set off or adjusted against the imprisonment awarded to a convict for default of payment of fine. It was further contended that the term of imprisonment for default of payment of fine in this case would start running only from the date of judgment of this Court i.e. 24.6.2003 and will be completed in December 2003. Therefore, the applicant is not entitled for release from the Jail, as claimed by him. To substantiate his contention, the learned Additional Advocate General has relied on Bogdaram v. State of Rajasthan, 1989 Cri. LJ. 414. 9. It is not in dispute that the applicant was arrested on 11.9.2000 for the commission of an offence under Section 18 of the Act and since then he is in custody. He was convicted and sentenced and warrant of execution of sentence imposed on him by the learned Sessions Judge was sent to the Jail authorities on 5.7.2001. On 24.6.2003, the sentence imposed by the learned Sessions Judge was reduced by this Court and a fresh warrant of execution of sentence imposed by this Court was issued. As per the fresh warrant, the applicant was to undergo the substantive term of rigorous imprisonment for two years and in default of payment of fine, a further term of rigorous imprisonment for six months. The dispute now is whether the period of pre trial custody and/or period of substantive imprisonment already undergone by the applicant can be counted as imprisonment suffered pursuant to the order of sentence passed by this Court. 10. Section 428 of the Code reads as under : "428. The dispute now is whether the period of pre trial custody and/or period of substantive imprisonment already undergone by the applicant can be counted as imprisonment suffered pursuant to the order of sentence passed by this Court. 10. Section 428 of the Code reads as under : "428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.—Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, 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, 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, of the term of imprisonment imposed on him." 11. The Section is clear, absolute and binding in its terms and mandates: (a) that the period of detention, if any, undergone by a convict during the investigation, inquiry and trial of the same case shall be set off against the substantive term of imprisonment imposed on him; and his liability to undergo imprisonment shall be restricted to the remainder, if any, of the term of substantive imprisonment imposed on him, and (b) that the set off as aforesaid is not available and claimable against a term of imprisonment in default of payment of fine." 12. In Bogda Rams case (supra), the High Court of Rajasthan held that the period of pre conviction detention of a convict cannot be set off against the imprisonment in default of payment of fine and if the convict does not pay the fine, he has to suffer the imprisonment in lieu of fine. The decision is, thus, in conformity with the provisions of Section 428 of the Code but is of no help to fully and completely decide the controversy in hand. 13. In view of the provisions of Section 428 of the Code, there cannot be any dispute about the entitlement of the applicant to set off the period of pre conviction detention against the substantive term of imprisonment of two years. 13. In view of the provisions of Section 428 of the Code, there cannot be any dispute about the entitlement of the applicant to set off the period of pre conviction detention against the substantive term of imprisonment of two years. The applicant remained under pre conviction detention admittedly from 11.9.2000, the date of his arrest till 5.7.2001 when he was convicted and sentenced by the learned Sessions Judge. As per the judgment of this Court reducing the sentence awarded to him by the learned Sessions Judge, the applicant was to first undergo rigorous imprisonment for two years and on completion thereof, and in the event of his failing to pay the fine as imposed by this Court, he was to undergo further rigorous imprisonment for six months. By virtue of the entitlement for set off under Section 428 of the Code, which cannot be denied to the applicant, in the ordinary course, he would have completed the substantive term of imprisonment of two years on 10.9.2002. However, the applicant had availed himself of parole of 125 days which cannot be calculated as a period of imprisonment, therefore, he has ;o undergo imprisonment of the parole period i.e. 125 days after 10.9.2002. Therefore, legally the applicant completed the term of two years imprisonment on January 13, 2003. Even after having undergone the imprisonment of two years as calculated in accordance with the provisions of Section 428 of the Code, the applicant continued to suffer imprisonment after 13.1.2003 and is still in custody. 14. Be it stated that in view of the substantive sentence of imprisonment imposed by this Court, the applicant could be detained in prison only upto 13.1.2003. The period of imprisonment undergone by the applicant after 13.1.2003, is not a period of pre conviction detention but imprisonment undergone after conviction. This part of imprisonment undergone by him is not the period of substantive imprisonment imposed on him as he had completed the term of substantive imprisonment imposed on him on 13.1.2003. The period of imprisonment undergone by the applicant after 13.1.2003, is not a period of pre conviction detention but imprisonment undergone after conviction. This part of imprisonment undergone by him is not the period of substantive imprisonment imposed on him as he had completed the term of substantive imprisonment imposed on him on 13.1.2003. Therefore, if the period of imprisonment suffered by the applicant after 13.1.2003 is not adjustable and accountable against the term of imprisonment in default of payment of fine and such term is to commence from the date of judgment of this Court i.e. 24.6.2003 as contended for the State, then the detention of the applicant in prison during the period 13.1.2003 to June 24, 2003, being without authority of law is illegal. It can have the sanction of law only if the period of imprisonment for default of payment of fine is deemed to have commenced from 14.1.2003. Therefore, the term of imprisonment undergone by the accused after his conviction, over and above the imprisonment he was to suffer in accordance with law and the judgment of this Court, shall have to be adjusted against the imprisonment awarded to the applicant in default of payment of fine. His detention in prison to undergo imprisonment during the period 13.1.2003 to 24.6.2003 otherwise cannot be legally justified in any manner. 15. The above discussion leads us to the conclusion that imprisonment in default of payment of fine imposed on the applicant shall be deemed to have commenced from 13.1.2003 and on completion of six months incarceration thereafter, he is entitled to be set at liberty. The applicant has, thus, completed term of six months imprisonment imposed upon him for default of payment of fine on 12.7.2003 and his detention thereafter is unauthorised and unwarranted in law. 16. As a result, this petition is allowed. The applicant who has already completed the term of sentences awarded to him, be set at liberty forthwith, unless required to be detained under any other process of law. Petition allowed.