Delhi High Court
Burhanuddin Tahevali Bilaspurwala vs Union Of India And Ors. on 1 November, 1993
Equivalent citations: 52(1993)DLT341
Author: D.P. Wadhwa
Bench: D.P. Wadhwa
JUDGMENT D.P. Wadhwa, J.
(1) The petitioner by this petition filed under Artcle 226 of the Constitution sought a writ of Habeas Corpus or any other writdirection or order requiring the respondents to set him at liberty forthwith.The petitioner was a detenu under the Conservation of Foreign ActivitiesExchange and Prevention of Smuggling Act, 1974 (for short 'the COFEPOSAAct'). There are three respondents. First is the Union of India throughthe Secretary in the Ministry of Finance in the Department of Revenue.The second is the Administrator of the Union Territory of Delhi and thethird is the Superintendent, Central Jail, Tihar, New Delhi. This petitionwas filed on 16/03/1993.
(2) The second respondent, the Administrator of the Union Territoryof Delhi, passed an order on 16/08/1991 in the exercise of powers conferred upon him by Section 3(1) read with Section 2(f) of the COFEPOSAAct on his satisfaction that it was necessary to detain the pe,titioner with aview to preventing him from smuggling goods and also preventing him fromengaging in transportation, concealing and keeping smuggled goods, infuture, this order was served upon the petitioner on 19/08/1991 whilehe was in the judicial custody in the Central Jail, Tihar, New Delhi.
(3) It is not necessary for us to go into the grounds on which the order - of detention was passed by the second respondent except to note thatthe petitioner was arrested on 2/06/1991 under the provisions of theCustoms Act, 1962, on his arrival from Kualalumpur at the Indira GandhiInternational Airport, N. Delhi. Two kgs. of primary gold of 24 carat puritywas recovered from the petitioner which was in the shape of two gold barsweighing one kg. each and the market value of winch was Rs. 7,40,000.00.For offences under the Customs Act the petitioner was in judicial custodywhen the order of detention under Cofeposa Act was clamped upon him.The pstitioner challenged his detention in this Court by filing a petition ofHabeas Corpus under Article 226 ofthe Constitution. This was his firstcriminal writ. The order of detention was quashed by this Court by orderdated 10/03/1993. In the trial for offences under the Customs Act asmentioned aforesaid the petitioner was convicted for offences under Sections 132 and 135(1)(a) of the Customs Act. By order dated 15/01/1993of the learned Additional Chief Metropolitan Magistrate, New Delhi, the petitioner was sentenced to undergo rigorous imprisonment for six monthsfor an offence under Section 132 and to undergo rigorous imprisonment for1-1/2 years for offence under Section 135(1)(a) of the Customs Act. the petitioner was also sentenced to pay a fine of Rs. I lakh and in default toundergo simple imprisonment for a further period of three months. Boththese sentences were ordered to run concurrently. Against his convictionand sentence the petitioner filed an appeal under Section 374 of the Code ofCriminial Procedure in the Court of Sessions. The learned AdditionalSessions Judge who heard the appeal reduced the period of sentence imposedon the petitioner in default of payment of fine from three months to 1"months. The learned Additional Sessions Judge also directed that the petitioner would get the benefit under Section 428 of the Code of Criminal Procedure. This was byjudgment dated 27/02/1993.
(4) When this petition was filed the petitioner had not been releasedfrom Jail although he said, he had already undergone the sentence awarded tohim and although his detention under the Cofeposa Act had been set asideby this Court. The petitioner said that he was in illegal custody of theSuperintendent, Central Jail, Tihar, New Delhi, the third respondent, and allby this petition be sought his release from the illegal custody. We issuednotice to show cause in the matter. 'The respondents put in their appearance.The facts are not much in dispute. On the request of the respondents whenwe adjourned this matter to 29/03/1993 the petitioner in the meanwhilewas released from the jail custody. Petitioner said he should have beenreleased fifteen days earlier. At that time the respondents accepted thatposition and said that there was a mistake in calculation. We observed itwas a serious matter and directed the respondents to file a proper affidavitbringing on record all the relevant facts. At the same time we grantedopportunity to the parties to argue on the question if any compensation wasto be awarded to the petitioner if we held that his detention and imprisonment at least after 10/03/1993, when the Court passed the order quashingthe detention order under the Cofeposa Act, was not legal. We recordedin one of our orders that when the detention order was quashed on 10/03/1993 the result would be that there was no detention order at all. The respondents said that their interpretation of law earlier had been that sentenceof imprisonment in lieu of payment of fine would start only after the periodof detention under the Cofeposa Act bad expired and in support of thisreference was made to a Bench decision of this Court in Cr. Writ No. 349/92dated 15/07/1992. There is no such decision on which reliance could beplaced by the respondents. This is merely an order by the Bench while issuing rule D.B. when the Bench raised a query as to when the period of imprisonment in lieu of fine would start. The case before us is quite different.Here the effect of the order dated 10/03/1993 is that detention order didnot exist at all, while in the Criminal Writ 349/92 the detention orderremained in force. Again as per the interpretation given by the respondentsthe petitioner could have been released only on 27-4-1993 but it was statedthat on the advice of the Standing Counsel, the petitioner was released onemonth earlier on 26/03/1993. In his affidavit the Jail Superintendent,the third respondent, has stated that the simple imprisonment in default ofpayment of fine could commence only on 11/03/1993, the date after thequashing of the order of detention under the Cofeposa Act, and therefore,the release of the petitioner was fixed for 26/04/1993. It was stated thatbenefit under Section 428 of the Code could not be given to the petitioner forsentence in default of payment of fine. Despite that, the third respondentsays, the petitioner was released from jail on 26/03/1993 as per legaladvice of the Government Counsel. Respondents 1 and 2 in their affidavithave taken the following position :-
"8.That the deponent is advised to state that the imprisonment in lieu of payment of fine runs after the expiry of substantiveimprisonment. The deponent is further advised to submit that incase a person is sentenced to two terms of imprisonment and payment of fine in two cases, then the sentences, in that event, theCourt awarding sentence as direct the substantive offences to runconcurrently but the sentences in lieu of payment of fine in morethan one case consecutively.
9.That the deponent is further advised to state that thereis no settled law interpreting the provisions of Section 429(2) of theCriminal Procedure Code. If there be any settled case neither theoffice of the deponent nor the jail administration were advisedaccordingly.
10.That the Jail Administration, without any mala fideintentions and without the intention of curtailing the individualliberty, have been equating the detention order with that of theterm of imprisonment. With respect the deponent submits, in lawit may not be found to be a correct position, but the concerneddepartment and the jail administration were never advised to thecontrary. Considering the period of imprisonment the Jail administration took the view that the period of imprisonment in lieu of payment of fine would run after the period of detention expired. Thesame mode of calculation is followed in the cases of similar nature."
This affidavit of respondents 1 and 2 has been filed by the Deputy Secretary(Home) of the Delhi Administration. These respondents 1 and 2 further saythat in view of the interpretation as abovementioned the jail authoritiesthought that the period of imprisonment in the present case in lieu of payment of fine will run w.e.f. 11/03/1993 after the order of detention wasquashed. They further say that the moment they were advised by theirAdditional Standing Counsel (Criminal) that interpretation of law as givenby the department did not seem to be correct, the petitioner was releasedforthwith. During the course of arguments, however, the respondents havetaken a contrary stand. They say the petitioner was not rightly released on 26/03/1993 as the interpretation given by the authorities earlier wascorrect and the petitioner was liable to be re-arrested to undergo the remaining part of his sentence in case this petition was dismissed. The respondentsthough say that the detention of the petitioner after 10/03/1993 wasneither with any malafide intention nor deliberate nor intended to curtail hispersonal liberty on account of any other factor, but was on account ofbonafide belief that the period of imprisonment in lieu of payment of finewould commence after 10/03/1993.
(5) We have not been told as to when and who formed such anopinion that the sentence in lieu of fine was to start only after the expiry ofthe period of detention under the Cofeposa Act. Mr. Ashutosh, learnedCounsel for the petitioner, has pointed out that the respondent had beenadopting this very attitude on earlier occasion as well when the matter waslisted before the Metropolitan Magistrate and he has brought on record twoorders, one of the Metropolitan Magistrate and the other of the AdditionalChief Metropolitan Magistrate, while not accepting the stand of the jailauthorities, and directing the jail authorities to release the detenus in thecases before them forthwith. It is unfortunate that in spite of that the respondent did not take any authoritative opinion and even before us adoptedthis very attitude of justifying their action.
(6) The object of the Cofeposa Act is not punitive but preventive.Under Section 4 of the Cofeposa Act the provisions of the Code are applicable only as regards the execution of the detention orders passed under theCOFEPOSA Act. In Pushpadevi M. Jatia v. M.L. Wadhavan, Additional Secretary,Government of India, and Others, the Court also considered the question whether the period of parole should be treated as part ofdetention period itself under the Cofeposa Act, and said that this questionhad already been elaborately considered in its earlier decision in Smt.poonamLata v. M.L. Wadhawan and Others, where it was saidthat period of parole had to be excluded in reckoning the period of detentionunder Sub-section (1) of Section 3 of the Cofeposa Act. Then the Courtobserved that though the element of detention was a common factor in casesof preventive detention as well as punitive detention, there was a vast difference in their objective. The Court said that the punitive detention follows asentence awarded to an offender for proven charges in a trial by way ofpunishment and had in it the elements of retribution, deterrence, correctionalfactor and institutional treatment in varying degrees. On the contrarypreventive detention was an extraordinary measure resorted to by the Stateon account of compulsive factors pertaining to maintenance of public order,safety of public life and the welfare of the economy of the country.
(7) Reference at this stage may be made to Sections 428 and 429 ofthe Code which are reproduced as under :-
"428.Period of detention undergone by the accused to be set offagainst the sentence of imprisonment.Where an accused person has, on conviction, been sentencedto imprisonment for a term, not being imprisonment in default ofpayment of fine, the period of detention, if any, undergone by himduring the investigation, inquiry or trial of the same case andbefore the date of such conviction, shall be set off against the termof imprisonment imposed on him on such conviction, and theliability of such person to undergo imprisonment on such convictionshall be restricted to the remainder, if any, of the terms ofimprisonment imposed on him.
429.Saving. (1) Nothing in Section 426 and Section 427 shall be held to excuse any person from any part of the punishmentto which he is liable upon his former or subsequent conviction.(2) When an award of imprisonment in default of paymentof a fine is annexed to a substantive .sentence of imprisonmentand the person undergoing the sentence is after its execution toundergo a further substantive sentence or further substantivesentences of imprisonment, effect shall not be given to the award ofimprisonment in default of payment of line until the person hasundergone the further sentence or sentences."
Relying on these provisions of the Code, Mr. Tulsi, learned AdditionalSolicitor General, made the following submissions :-
1.The detention of the petitioner till the date of his release on 25/03/1993 was perfectly legal, valid and justified. Thesubstantive sentence awarded to the petitioner by the TrialCourt by judgment dated 15/01/1993 had already come toan end on 2/12/1992 after giving the petitioner thebenefit of imprisonment as undertrial under Section 428 of theCode. On the date of expiry of sentence, a valid order ofpreventive detention under Cofeposa Act was in force.Therefore, detention in custody from 2/12/1992onwards was of the nature of preventive detention till the date 10/03/1993 when the order of detention was quashed bythis Court. The petitioner had yet to undergo the sentence indefault of fine awarded by the Trial Court and as modified inappeal. This practice was perfectly in confirmity with theprovisions of Section 429(2) of the Code. The expression"after substantive sentence" in this regard will embrace in itsscope all lawful orders and warrants authorising detention ofthe prisoner in further custody. Such sentence may be penalor preventive as au undertrial or as a convict or even in thecourse of extradition proceedings or remand to children'shome. So long as any other warrant of custody existed againstthe prisoner, he must be regarded to be under obligation toexhaust such warrant by undergoing "further substantivesentence" before he was required to undergo sentence in lieuof fine. This is the scheme of the section on its plain reading.
2.Sentence in lieu of fine, under the scheme of Section 429(2) ofthe Code was required to be executed at the end. The reasonfor this schema for execution of such sentence at the end wasthat the prisoner was given the maximum opportunity to paythe fine. Imprisonment in lieu of default of payment of finewas merely the means to enforce the sentence of fine. Thus,the statute incorporated a principle of execution of sentence indefault after all further sentences and warrants of custody hadbeen exhausted. That being so, treating the date of quashingthe detention as the date for starting the sentence in default offine was in confirmity with the principle of Section 429 and notopposed to the same.
3.The expression "sentence" has been used interchangeably withdetention in may statutes.
4.Even if this Court were to come to conclusion that the expression "sentence" had a distinct and a different meaning fromdetention, it was submitted that nevertheless this Court mayadopt a liberal construction to make the object of Section 429(2) more effective and operative.
5.The present case was certainly not one where it could bo saidthat any provision of any Act, rule or order duly promulgated,had been violated. If on interpretation of the language Along with the object of Section 429(2) of the Code this Court cameto the conclusion that the sentence in lieu of default of payment of line ought to have started running immediately afterthe expiry of the substantive sentence, in that event, this Courtwould for the first time lay down such a proposition. Thus,in any case, the action of the respondent could not be dubbedby the petitioner as contrary to any provision of law on thedate on which resort to it was had nor could it be termed asnegligence in any manner. In any event, in order to avoidthe possibility of retaining the petitioner in custody during thependency of these proceedings, as by abundant caution and indifference to the overriding claims of liberty of citizens, the petitioner was pre-emptorily released from custody. This onlyreaffirmed bonafides of the respondents. In the circumstancesit was submitted that it was not a fit case where the petitioner,even if, interpretation of this Court were to go against therespondents, was entitled to any compensation.
6.In all the cases referred to by the petitioner relating to theaward of compensation for illegally depriving personal liberty,the illegality of detention of petitioner was clearly unconstitutional, or was primafacie established, on the basis of whichorder of compensation under Article 226 or 32 of the Constitution was passed. Such not being the case in the presentpetition, the petitioner could not be allowed compensation inthe facts and circumstances of this case.
(8) Mr. Tulsi also referred to the meaning of the word ''sentence" from the book 'Words and Phrases-legally defined' by John B. Butter worths,1970 Edition, pages 43-44. The definition of sentence is with referenceto some English Acts and is not relevant for our purposes. We, therefore,need not refer to that.
(9) All the above submissions of Mr. Tulsi have been refuted byMr. Ashutosh and he said it was a clear case where the petitioner has beendeprived of his personal liberty by respondents illegally and that the petitioner was entitled to requisite compensation. In support of his submissions he referred to a decision of the Supreme Court in BhuwneshwarSingh v. Union of India and Others, ; Nilabati Bahera(Smt.) alias Lalita Behera v. State of Orissa and Others, ;Bhim Singh v. State of J. and K. and Others. ; and a Benchdecision of this Court in Hukam Singh v. State (Delhi Administration), 1993(III) Appex Decisions (Delhi) 497.
(10) The whole argument of Mr. Tulsi appears to have been based ona premise that the substantive sentence under the Customs Act and detentionunder the Cofbposa Act would amount to cumulative sentence andthat the length of the term under cumulative sentence would be the totalof separate sentences and that second or subsequent sentence did not beginuntil the earlier sentence or sentences had been satisfied. The submissionwas with reference to Article 1587 of Corpus Jurisdiction, Volume 24 (CriminalLaw). From this article the following portion was also referred to :- "WHEREone of two consecutive sentences is invalid, theconvict is entitled to discharge on expiration of the valid sentence;and, ordinarily, where accused is sentenced to imprisonment forsuccessive terms, and the first sentence is reversed or vacated, oris shortened by a pardon of parole, the second term begins to runfrom the time of the reversal or vacation, or from the pardon orparole of the convict. The same is true where a prisoner is releasedon the first sentence before the expiration of the sentence becausehe is given credit for good time.However, it has also been held that where a prior sentencefalls because of reversal, the second sentence should be movedforward and made to run as of the date of its imposition or thedate of the commencement of the invalid sentence."
(11) We are of the opinion that whole approach of the respondentsis wrong. They would appear to have deliberately refused to grasp thedifference between the preventive detention and punitive sentence. According to Mr. Tuisi, the sentence in lieu of fine was to start from 11/03/1993 ending on 26/04/1993. The substantive sentence of imprisonmenthad expired on 2/12/1992. The effect of the order of this Courtquashing the detention against the petitioner was that his detention was notcorrect and his undergoing imprisonment for the period he remained indetention would stand wiped off. During the period of trial for offencesunder the Customs Act before the Criminal Court the petitioner throughoutremained in judicial custody. up to 2/12/1992 the petitioner wasundergoing the substantive sentence under the Customs Act and detentionunder the Cofeposa Act. For the respondents the period from 2/12/1992 till 10/03/1992 during which the petitioner remainedimprisoned was of no significance whatsoever.
(12) In Raghbir Singh v. State of Haryana, , thequestion before the Supreme Court was whether it was open to a personwho was undergoing imprisonment on being convicted of an offencecommitted by him to claim that the period occupied by the investigationor inquiry carried on and the trial held while he was undergoing imprisonment in respect of another offence alleged to have been committed by himshould be set off against the term of imprisonment imposed on him onbeing convicted of the latter offence under Section 428 of the Code. TheCourt said that the period occupied by such investigation, etc., could not beset off against sentence to be imposed in the latter case.
(13) In Government of Andhra Pradesh and Another etc. v. AnneVenkateswara Rao etc, Air 1977 Sc 1096, the Court decided a groupof four appeals. In one of the appeals the claim was that period ofdetention undergone by the appellant (A.V. Rao) under the preventivedetention law should be set off under Section 421 of the Code against theterm of imprisonment imposed on him on his conviction in the criminalcase. The argument was that the expression "period of detention" Section 428 included detention under the Preventive Detention Act or theMaintenance of Internal Security Act The Court said : "It is true that theSection speaks of the "period of detention" undergone by an accused person,but it expressly says that the detention mentioned refers to the detentionduring the investigation, enquiry or trial of the case in which the accusedperson has been convicted. The section makes it clear that the period ofdetention which it allows to be set off against the term of imprisonmentimposed on the accused on conviction must be during the investigation,enquiry or trial in connection with the "same case" in which he has beenconvicted. We, therefore, agree with the High Court that the periodduring which the writ petitioners were in preventive detention cannot beset off under Section 428 against the term of imprisonment imposed onthem." The Court also rejected the argument of the State that a personunder detention cannot have two types of detention-One preventive andthe other punitive. The Court said : "As regards the alleged anomaly ofa man having to suffer two kinds of detention at the same time, onepreventive and the other punitive, we do not find this to be a valid objection.The position is not different from the case where a man is sentenced ondifferent counts to a term of rigorous imprisonment and another term ofsimple imprisonment, and the sentences are directed to run concurrently."
(14) It is, thus. obvious that the provision of Section 428 or Subsection (2) of Section 429 of the Code were inapplicable. The petitionerwas not undergoing any sentence of imprisonment when be was detainedunder the Cofeposa Act. It could not, therefore, be said that thesentence of imprisonment in default of payment of fine would be giveneffect to after the period of preventive detention was over. There is noambiguity. The sentence of imprisonment in default of payment of fine inthe present case, therefore, started taking effect immediately after thecompletion of the substantive sentence of 1-1/2 years on 2/12/1992.Since the sentence of imprisonment in default of payment of fine was only1-1/2 months the period of imprisonment, therefore, ended on 1-1/2 monthsafter 2/12/1992. When this period ended the petitioner was underdetention under the Cofeposa Act he could not have been released. Butthe moment his detention under the Cofeposa Act was quashed he wasentitled to be released forthwith. Thereafter he was in illegal custody. Hisfundamental right under the Constitution stood violated. There cannot betwo opinions on that.
(15) The question then arises, if the petitioner is entitled to anycompensation for infraction or invasion of his rights granted under Article 21 of the Constitution, and if so, to what amount. The law is now wellsettled that relief of monetary compensation as exemplary damages inproceedings under Article 226 of the Constitution for "established infringe-ment of the indefeasible right granted under Article 21 is a remedy availablein public law and is based on the strict liability for contravention of theguaranteed basic and defeasible rights of the citizen." In Nilabati Behera'scase the Supreme Court awarded compensation of Rs. 1,50,000.00 to the petitioner, the mother of the deceased who was aged about 22 years. Itwas a case of custodial death. The Court noticed that the deceased washaving monthly income between Rs. 1200 to Rs. 1500.00 per month and wasof the view that Rs. 1,50,000.00 would be the appropriate sum as compensation. In the case of Bhim Singh v. State of J. and K. and Others the SupremeCourt granted the petitioner a compensation of Rs. 50,000.00 for his illegaldetention by the police authorities for a period of 5 days from 10 to 14/09/1985 when he was not produced before the Magistrate and theprovisions of Articles 21 and 22(2) of the Constitution stood violated. Inthe present case the petitioner was in illegal custody for 15 days. Law isnot settled as to what amount of compensation is to be awarded in suchcases. We do not think any difference can bemade if a citizen is poor orrich for the purpose of award of compensation in a case like the presentone. Whether a person is rich or poor personal liberty has the same meaning. It may perhaps be more in the case of poor and a down troden whohas to earn for his livelihood each day.
(16) We are certainly dismayed at the stand taken by the respondents.They have tried to justify their action on grounds which are whollyuntenable. Rather it would appear that their approach has been verycasual and they have not shown even little sense of responsibility where aperson has been deprived his personal liberty in violation of his fundamentalright under Article 21 of the Constitution. Personal liberty is too preciousa thing to be taken rightly by any one much lers the State and itsfunctionaries. Nothing could be more precious and sacrosanct than theliberty of an individual.
(17) We are of the view that interest of justice would be served if weaward compensation at the rate of Rs. 1,000.00 for each day the petitionerwas deprived of his personal liberly. The total compensation, therefore,comes to Rs. 15,000.00. The petitioner will also be entitled to costs. CounselfeeRs.3,000.00. The amount of compensation and the costs shall be .paid to the petitioner within two months from today. Petition allowed.