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Short credits in long sentences

Mohan R. Lavi

Mohan R. Lavi on anomalies in applying `setoff' in imprisonments

SECTION 428 of the Criminal Procedure Code (CPC) provides for setoff of the period of imprisonment undergone during trial at the time of final indictment. The Supreme Court was called upon to decide about Section 428 relating to set off of a period of detention in the Maliyakkal Abdul Azeez (petitioner) vs Assistant Collector, Kerala and Anr (2004 44 CC D-139 SC) case.

The petitioner flew into Thiruvananthapuram from Dubai in August 1985 and gave the customary declaration to Customs. On an examination of his baggage, 20 gold biscuits of foreign origin an electric water motor concealing 70 gold biscuits were found. In toto, he had attempted to clandestinely bring in about Rs 22-lakh worth of these precious biscuits. The Assistant Collector, Air Customs and the Additional Chief Judicial Magistrate (Economic Offences) got into business and sentenced the petitioner to three years rigorous imprisonment and a fine of Rs 20,000, and with a default stipulation of two months' simple imprisonment.

The petitioner succeeded in reducing the sentence to two years before the Sessions Court. Unhappy with the outcome, the petitioner went to the Kerala High Court claiming that he should be given credit for the two years and the same should be set off since Section 428 expressly provided for the same.

The Kerala High Court was not as magnanimous as the Sessions Court and ruled that since the petitioner was detained under COFEPOSA, the setoff as provided in Section 428 would not come to his rescue. Unrelenting, the petitioner escalated the matter to the apex court.

The petitioner claimed that his prisoner brethren had gone through this before and had the blessings of courts too — State of Maharashtra vs Najakat Ali Mubarak Ali (2001 6 SCC 311) and Government of Andhra Pradesh vs Anne Venkateswara Rao (1977 3 SCC 298). The Supreme Court analysed Section 428 and came to the conclusion that there are two sine qua nons to obtain the benefit given by the Section

During the stage of investigation, enquiry or trial of a particular case the prisoner should have been in prison at least for a certain period. He should have been sentenced to a term of imprisonment in that case.

If these two conditions are satisfied, then the operative part of the provision comes into play — if the sentence of imprisonment is longer than the period of detention during the investigation stage, then only the balance period would need to be served.

Delving into history, the court noticed that Section 428 was brought into the CPC in 1973 on the basis of the recommendations of a Committee which felt that under-trials were spending too much of time in prison and prisons in the country were chock-a-block with under-trials leaving little legroom for the real offenders. Also, the sentence finally awarded in many cases is a fraction of the time spent in prisons. Acquittals are common.

Looking into the decision in Anne Ventakeswara case (supra), the apex court ruled that Section 428 only provides for setoff but does not equate an under-trial detention or the detention with imprisonment on conviction.

The provision as to set off expresses a legislative policy — this does not mean that it does away with the difference in the two kinds of detention and puts things on the same footing for all purposes.

In Rex vs Halliday (1917 AC 260 268), it was held that a preventive detention is not punitive but a precautionary measure. Quoting from Champalal Punjaji Shah vs State of Maharashtra (1982 1 SCC 507), the court held that detention under COFEPOSA is different from detention of other under-trials and, hence, the petitioner has no case.

This case reflects that it is not only our prisons that are full, courts are also choked with cases. It has taken 18 years for the petitioner to hear what he was told in 1985 itself — that he has no case.

It is also difficult to decipher why a distinction needs to be made between various types of detention for the purpose of obtaining a setoff.

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