Jammu & Kashmir High Court
Parshotam Lal vs State Th.Home Deptt.And Ors. on 28 March, 2016
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
1
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
561-A No.585/2015
MP No.01/2015
Date of Order: 28.03.2016.
Parshotam Lal vs State and ors.
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge
Appearing counsel:
For the petitioner(s) : Mrs. Rozina Afzal, Advocate.
For the Respondent(s) : Mr. Rakesh Khajuria, AAG.
(i) Whether approved for reporting in press/media: Yes.
(ii) Whether approved for reporting in Law Journal/Digest: Yes.
1. The petitioner seeks quashment of the order dated
26.11.2015 passed by the Court 1st Additional Sessions
Judge Jammu in terms whereof clarification vis-a-vis
custody period of petitioner (convict prisoner) has been
issued.
2. The question for determination in essence is as to
whether total period of detention during investigation,
enquiry and trial in connection with two separate criminal
cases against the petitioner and the period of detention
undergone under Public Safety Act 'for short PSA' shall
be counted for the purposes of period of sentence of 10
years rigorous imprisonment awarded by the trial Court
(1st Additional Sessions Judge Jammu) upheld by High
Court. The answer has to be in negative.
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3. Petitioner-Parshotam Lal was arrested on 09.08.1989 by
Superintendent, Customs Preventive Station R S Pura for
commission of offence under Sections 20/22 of the
Narcotics Drugs and Psychotropic Substances Act, 1985
(for short 'NDPS Act'. He was released on bail on
01.09.1989.
4. In connection with the said case, the petitioner after
facing trial was convicted vide detailed judgment dated
22.07.1992 passed by the Court of 1st Additional Sessions
Judge Jammu. He has been sentenced alongwith two
other co-accused persons to undergo imprisonment for
10 years and to pay a fine of Rs.1,00,000/- (one lakh
only) under Section 20 of the NDPS Act and also
sentenced to rigorous imprisonment of 10 years and to
pay fine of Rs.1,00,000/- (one lakh only) under Section
22 of the NDPS Act. Both the sentenced have been
ordered to run concurrently.
5. During the trial when the petitioner was on bail, he had
been detained under Public Safety Act under the orders
of the detaining authority i.e. Divisional Commissioner,
Jammu on 24.09.1990. The said order of detention was
quashed by this court on 28.08.1991 while disposing of
HC(W) No.563/1990 titled Parshotam Lal vs/ Divisional
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Commissioner Jammu.
6. On the date, trial Court recorded the conviction i.e.
22.07.1992, the petitioner was taken into custody to
serve out the period of sentence. An appeal was filed
against the judgment of the Ld. 1st Additional Sessions
Judge Jammu. During the pendency of the appeal,
petitioner was released on bail under the orders of the
High court on 24.11.1992. The appeal was finally
dismissed on 12.05.2000 but the petitioner had not
surrendered to serve out the period of sentence.
7. While being at large having not surrendered, he again
was arrested by Directorate of Revenue Intelligence New
Delhi for commission of offence under Sections 21 and
29 of the NDPS Act on 09.09.2003. After facing trial for
commission of the said second offence at Delhi, he was
convicted by the Court of Special Judge, NDPS Patiala
House New Delhi vide judgment dated 03.12.2009 and
was sentenced to undergo rigorous imprisonment for 10
years and to pay fine of Rs.2,00,000/- (Two lakh only)
vide order dated 14.12.2009. As against the said
judgment and order, appeal has been filed before the
Hon'ble Delhi High Court. He has been
admitted to bail vide order dated 06.02.2012 recorded on
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the Criminal Application No.190/2010. Before he could be
released, production warrant as was issued by the Court
of ld. 1st Additional Sessions Judge Jammu was received
by the Tihar jail authorities, in compliance whereof, the
petitioner was produced before the Court of 1st Additional
Sessions Judge Jammu on 13.04.2010. On production, he
has been lodged in District Jail Jammu for serving out the
period of sentence as was awarded by the Court of 1st
Additional Sessions Judge Jammu and upheld by the High
Court of J&K.
8. It appears that the petitioner had projected before the
jail authorities that he has served out the period of
sentence of 10 years as had been awarded by the Court
of 1st Additional Sessions Judge Jammu and has also
deposited the fine of Rs.2,00,000/- (Two lakh only).
Therefore, he shall be released. The jail authorities
confronted with the position, as was projected by the
petitioner i.e. whole period of detention which the
petitioner had served in connection with the case as was
registered at Jammu, period of detention under PSA and
the period for which he was lodged in Tihar Jail shall be
counted, sought clarification from the Court of 1st
Additional Sessions Judge Jammu.
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9. Learned Court of Ist Additional Sessions Judge Jammu
has passed a detailed order dated 26.11.2015
whereunder it has been clarified that the convict-
Parshotam Lal has to undergo imprisonment as was
1st
ordered by the Court of Additional Sessions Judge
Jammu without being concurrent with any other
sentence and the period of imprisonment has to be
calculated as per the warrant of imprisonment issued
w.e.f 13.04.2010 neither w.e.f 01.09.2003 nor w.e.f
10.12.2007 as has been suggested by the superintendent
Central Jail, Kot-Bhalwal, Jammu.
10. The admitted position as has emerged regarding the
period of detention of the petitioner is as under:
A (i). In connection with the commission of the
offence at R S Pura punishable under Section 20/22
NDPS Act, the petitioner has been arrested on
09.08.1989, convicted and sentenced on 22.07.1992.
A (ii). Appeal against the conviction has been
dismissed by the High Court of J&K on 12.05.2000.
(B) The petitioner has also remained under
detention in pursuance to detention order passed under
PSA from 24.09.1990 till its quashment by the High court
i.e. 28.08.1991.
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11. The period of detention in connection with the said cases
is as under:
(A) (i) 09.08.1989 (date of arrest) to 1.09.1989
(date of release on bail) = 22 days.
(ii) 22.07.1992 (date of conviction on which
convict was taken into custody) to 24.11.1992
(date of release on bail by the High Court) = 4
months and 02 days.
(iii) 13.04.2010 (when pursuant to warrant of
production, petitioner had been brought from Tihar
Jail to Jammu and lodged in District Jail for serving
out the period of sentence) to till date of hearing of
this petition = 6 years, 03 months and 26 days.
(B) Period of detention under PSA from 04.09.1990
(date of taking into custody) to 29.08.1991 (date of
release pursuant to quashment of the order of
detention by the High Court) = 11 months and
21 days.
(C) Period of detention in Tihar Jail in connection
with the case for commission of offence
under Sections 21 and 29 of NDPS Act.
From 09.09.2003 (date of arrest by DRI, New
Delhi) to 13.04.2010 (date when on production of
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warrant issued by the Court of 1st Additional
Sessions Judge Jammu, the petitioner was
produced in Jammu and lodged in District Jail
Jammu). The total period = 6 years, 07 months
and 04 days.
12. The period of detention i.e. 06 years, 07 months and 04
days during investigation, enquiry, trial and appeal in
connection with the case committed at New Delhi has not
to be counted vis-a-vis period of sentence of 10 years
rigorous imprisonment passed by the Court of 1st
Additional Sessions Judge Jammu and upheld by the High
Court of J&K because the ld. Trial Court at Delhi (Special
Judge, NDPS, Patiala House, Delhi) while recording
conviction and passing the order of sentence has not
directed that the period of sentence shall run
concurrently with the previous sentence which fact
perhaps has not been brought to the notice of the said
Court. Now since the appeal is pending against that
conviction, the appellate Court (High Court of Delhi) if
after upholding the conviction may or may not direct the
running of the sentence concurrently with the previous
sentence. As on date, there is no such order.
13. Learned trial court at Delhi in the judgment had directed
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that the period of detention during investigation, enquiry
and trial of the said case undergone by the accused to be
set off against the sentence of imprisonment as
permissible under Section 428 Cr.PC (Central Code)
which corresponds to Section 397(A) of the State Code.
14. Learned Counsel for the petitioner tried to project that
the learned trial Court at Delhi has allowed running of
sentence concurrently with the previous sentence as
recorded by the trial Court (1st Additional Sessions Judge
Jammu) is mis-placed because such a direction i.e.
running of the sentence concurrently with the previous
sentence is governed by Section 427 of the Code of
Criminal Procedure (Central code) which corresponds to
Section 397 of the State Code. There is no such direction
by the trial Court at Delhi under Section 427 Central
Code.
15. There is a marking difference between Sections 427 and
428 Central Code which corresponds to Sections 397 and
397(A) State Code. Under Section 428 Central Code
which corresponds to Section 397(A) State Code while
recording sentence, the court has to direct that the
period of detention if any undergone during
investigation, enquiry or trial of the same case and
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before the date of such conviction shall be set off against
the term of imprisonment imposed on the accused.
Whereas, under Section 427 Central Code, subsequent
imprisonment has to commence at the expiration of the
imprisonment to which the accused has been previously
sentenced unless the Court directs that the subsequent
sentence shall run concurrently with the previous
sentence. Therefore, the requirement of running
subsequent sentence with the previous sentence
concurrently, it has to be directed by the Court while
awarding subsequent sentence.
16. The period of detention during investigation, trial and
conviction in subsequent case i.e. at Delhi has been set
off by the Trial Court at Delhi in the same case that
cannot be a set off against the period of sentence which
the petitioner is suffering pursuant to the first conviction
and sentence passed by the Court of 1st Additional
Sessions Judge Jammu unless of course while deciding
the appeal as is pending against the conviction and
sentence recorded by the trial Court at Delhi, the High
Court of Delhi where the same is pending directs running
of sentences concurrently with the previous sentence.
17. The period of detention of the petitioner for 11 months
10
and 21 days in pursuance to the order of detention
passed under PSA has not to be set off because that is a
period for which the petitioner has not been in custody
during trial, enquiry and conviction of the case.
18. In the view taken, I am fortified by the judgment of the
Hon'ble Supreme court rendered in the case of State of
Maharashtra v. Najakat Alia Mubarak Ali ( 2001 Legal
Eagle (SC) 829 ): Equivalent Citation 2001 (6) SCC
311. Para 28, 30, 33 and following portion from Para 27
are advantageous to be quoted:
"27................................................................
.....................................................................
...........................................................We are unable to agree with the submission of Shri Jethmalani. In 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 Prevention Detention Act or the Maintenance of Internal Security Act. It was observed (para 7):
'' IT is true that the section speaks of the period of detention undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the 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 11 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 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 terms of imprisonment imposed on them''............................................................ ...... ......
(28). A perusal of the section unambiguously indicates that only such accused is entitled to its benefit of that period of detention which he has undergone during the investigation, enquiry or trial of the same case. It does not contemplate of the benefit of set-off of the period of detention during investigation, inquiry or trial in any other case. The purpose and object of the section, as pointed out by Brother Thomas, J., is aimed at providing amelioration to a prisoner in a case where he has been in detention for no fault of his. The section, however, does not intend to give any benefit or bonus to an accused guilty of commission of more than one crime by treating the period of detention during investigation, inquiry and trial in one case as that period in the other cases also for the purposes of set-off in the sentence.
Such an entitlement requires the judicial determination which can be adjudicated by a court awarding the sentence in exercise of its powers under Section 427 of the Code. The words '' period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case '' are important to indicate 12 the paramount concern and intention of the legislature to protect the interests of under-trial prisoners by giving them the set-off of that period in '' that case'', at the conclusion of the trial. 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, inquiry or trial in connection with the same case in which he has been convicted.
(30) THE dictionary meaning of the word '' same'' is identical; referring to a person or thing just mentioned; the same thing as previously mentioned. It generally refers to the last preceding antecedents: one and the same:
not distinct. Generally speaking the ''same case'' would thus mean '' same transaction'' for which the accused has been tried. Two different criminal cases, therefore, cannot be treated to be the ''the same case'' in relation to an accused for the purposes of determining the applicability of Section 428 of the Code.
33) AFTER referring to the judgments of this Court in Mr. Boucher Pierre Andre v.
Superintendent Central Jail Tihar9, Suraj Bhan v. Om Prakash 10, Govt. of A.P. v. A.V. Rao11, the earlier judgment of that Court in Nasim v. State of U.P.12, the judgment of the Delhi High Court in K.C. Das v. State (supra), of Bombay High Court in Jaswant Lal Harjivan Das Dholkia v. State 13, Mohan Lal v. State of U.P.14, the Full Bench further held that under Section 428 the period of detention as an undertrial of an accused in a particular case can be set off only 13 towards the sentence ultimately awarded to him in that very case. The Court further 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.''
19. For the stated reason and the law, the order impugned passed by ld. Trial Court (1st Additional Sessions Judge Jammu) dated 26.11.2015 is maintained.
20. Petition being without merit is accordingly dismissed alongwith connected MP.
(Mohammad Yaqoob Mir) Judge Jammu 28.03.2016 Raj Kumar