Holding

Detention under preventive detention statutes such as COFEPOSA cannot be set off against a sentence under Section 428 of the CrPC.

Summary

Maliyakkal Abdul Azeez was convicted under Section 135(1) of the Customs Act for smuggling gold and sentenced to three years' rigorous imprisonment, later reduced to two years. He had earlier been detained for two years under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), a preventive detention law. He sought to set off the COFEPOSA detention against his prison term under Section 428 of the Code of Criminal Procedure, which allows credit for time spent in custody during investigation, inquiry or trial of the same case. The Supreme Court held that Section 428 applies only to detention that is part of the criminal process concerning the same offence and that preventive detention is a non‑punitive, precautionary measure, not qualifying as "detention" for set‑off purposes. Consequently, the petition for set‑off was dismissed.

Issues considered

Whether detention under COFEPOSA, a preventive detention law, qualifies as "detention" under Section 428 of the CrPC for the purpose of set‑off.
Whether Section 428 can be applied to periods of detention not connected to the investigation, inquiry or trial of the same case.
Whether preventive detention can be treated as time spent as an under‑trial prisoner for sentencing purposes.

Legislation cited

Subjects

Section 428 CrPCpreventive detentionCOFEPOSAset off of detentionunder‑trial detentioncustoms smugglingcriminal sentencing

Judgment

MALIYAKKAL ABDUL AZEEZ A
v.
ASSISTANT COLLECTOR, KERALA AND ANR.

JANUARY 17, 2003

[SHIVARAJ V. PATIL AND ARIJIT PASAYAT, JJ.] B

Code of Criminal Procedure, 1973:

s. 428-&t off -Accused sentenced to imprisonment for offence under
s.135(/) of Customs Act, 1962-Claiming set off of the period of detention C
undergone by him under Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1973-High Court rejected the plea of set off
• holding that period spent under COFEPOSA was not to be considered as
detention for the purpose of the criminal case-Special leave petition by
accused-Held, s. 428 postulates two requisites: (i) during the stage of D
investigation, inquiry or trial of a particular case, the prisoner should have
been in jail at least for a certain period and (ii) he should have been sentenced
to a term of imprisonment in that case-Detention under preventive detention
Jaws is not punitive but is essentially a precautionary measure intended to
prevent and intercept a person before he commits as infra-active act which he
had done earlier-Petition dismissed-Preventive detention. E
Government of Andhra Pradesh and Anr. v. Anne Venkatesware and
Ors., (1977( 3 SCC 298; Champa/al Puniaji Shah v. State of Maharashtra,
(1982) l SCC 507 and Mr. Kubic Dariusz v. Union of India and Ors., AIR
(1990) SC 605, relied on.
F
State of Maharashtra and Anr. v. Najakat Alia Mubarak Ali, (2001) 6
sec 311, cited.
Rex v. Halliday 1917 AC 260, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Misc. Petition G
No. 947812002.

•- From the Judgment and Order dated 11.2.2002 of the High Court of
Kerala in CRIRP 175194.
·~- .· H
423
424 SUPREME COURT REPORTS [2003] 1 S.C.R.

A P.V. Dinesh, P.V. Viond and Ms. T.P. Sindhu with him for the Appellant.

The following Order of the Court was delivered

Delay condoned.

B Though this is not a case which deserves grant of leave to prefer appeal-
we think it appropriate to dispose of the petition with a reasoned order as
many cases involving similar issues are being filed. _,_

According to the petitioner, he is entitled to set off as provided under
Section 428 of the Code of Criminal Procedure, 1973 (in short 'the Code')
C for the period of detention under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (in short 'COFEPOSA'}, since
the detention was quashed by the DelJ.i High Court. Reliance is placed on a
decision of this Court in State of Maharashtra and Another v. Najakat Alia
Mubarak Ali, (200 l] 6 SCC 311 to contend that the period is available to be
D set off against the period of sentence imposed on conviction under Section
135(1} of the Customs Act, 1962 (in short 'the Customs Act'}.

Factual position is almost undisputed and needs to be noted in brief.
Prosecution version which led to trial of the accused petitioner is as follows:

E The. petitioner arrived at the Trivandrum Airport on 12.8.1985 from
Dubai by Air India Flight No. AI 920. Though declaration was given by him
abf.ut the possession of 16 items, nothing was stated about possession of the
gold. When his baggage was subjected to open examination, it was revealed
that he 'was carrying 20 gold biscuits of the foreign origin . On the basis of
the information furnished by the petitioner an electric water motor brought
F by him was opened and 70 gold biscuits were found concealed. The total
value of the illegally transported gold biscuits was fixed at around Rs. 22 .
lakhs. The Assistant Collector, Air Customs. Trivandrum Airport filed a
complaint and the petitioner faced trial by the Additional Chief Judicial
Magistrate (Economic Offences) Emakulam. As noted above, he was found
G guilty of offence punishable under Section 135(1) of the Customs Act and
was sentenced to undergo rigorous imprisonment for three years and to pay
a fine of Rs. 20,000 with default stipulation of two months simple
imprisonment. Appeal before the Sessions Court, Emakulam was partly
allowed and the custodial sentence was reduced to two y~ars. The fine amount
was maintained, but default stipulation partly modified.
H
M.A. AZEEZ v. ASSISTANT COLLECTOR 425

In the revision tiled before the Kerala High Court, the conviction and A
sentence imposed were challenged. Additionally, it was prayed that the period
of detention under the COFEPOSA was for two years and should be set off
in terms of Section 428 of the Code. The High Court rejected the revision on
merits. The plea relating to set off was also turned down. It was held that the
period spent under COFEPOSA was not to be considered as detention for the
purpose of the criminal case. It was further noted that the petitioner was on B
bail while the detention order was passed and, therefore, cannot be treated to
be an under-trial prisoner. He was in judicial custody when detained under
the COFEPOSA. After detention under COFEPOSA, bail granted was not
cancelled and, therefore, the petitioner was not an under-trial prisoner.
c
In support of the application for grant of leave, strong reliance was
placed on the decision in State of Maharashtra and Ors. v. Naiakat Alia
Mubarak Ali, (supra). It was submitted that the period of imprisonment
undergone by an accused as an under-trial during investigation, enquiry or
trial of a particular case irrespective of whether it was in connection with the
same case or any other can be set off against the sentence of imprisonment D
imposed on conviction in that particular case. It was further submitted that
the facts situation is identical to those involved in Government of Andhra
Pradesh and Anr. v. Anne Venkatesware and Ors., [1977) 3 SCC 298.

In order to appreciate the stand of the petitioner, Section 428 of the E
Code needs to be noted. The provision reads as follows:

"Section 428: Period of detention undergone by the accused to be set
off against the sentence of impnsonment-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 F
detention. If any, undergone by him during the investigations, inquiry,
or trial of the same case and before the date nf 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 G
term of imprisonment imposed on him."

The two requisites postulated in Section 428 of the Code are:-

(I) During the stage of investigation, enquiry or trial of a particular
case the prisoner should have been in jail at least.for a certain period: H
426 SUPREME COURT REPORTS (2003) l S.C.R.

A (2) He should have been sentenced to a tenn of imprisonment in that
case.

If the above two conditions are satisfied then the operative part of, the provision
comes into play i.e. if the sentence of imprisonment awarded is longer than
the period of detention undergone by him during the stages of investigation,
B enquiry or trial, the convicted person need undergo only the balance period
of imprisonment after deducting the earlier period from the total period of
imprisonment awarded.

Section 428 of the Code was brought on the statute bOok for the first
time in 1973. It was incorporated in the light of the proposal put forward by
C the Joint Select Committee. It was noticed by the Committee that in many
cases the accused persons are kept in prison for a very long period as under-
trial prisoners and in some cases the period spent in jail by under-trial prisoners
far exceeded the sentence of imprisonment ultimately awarded. It was also )I<.

noticed by the Committee with concern that large number of prisoners in the
D over-crowded jails of the country were under-trial prisoners. Provision was
introduced to remedy the unsatisfactory state of affairs, by providing for
setting off the period of detention as under-trial prisoners against the sentence
of imprisonment imposed on the accused. Views of the Committee were
expressed in following words:

E "The Committee has noted the distressing fact that in many cases
accused persons are kept in prison for very Jong period as undertrial
prisoners and in some cases the sentence of imprisonment ultimately
awarded is a fraction of the period spent in jail as undertrial prisoner.
Indeed, there may even be cases where such a person is acquitted. No
doubt, sometimes courts do take into account the period of detention
F undergone as undertrial prisoner when passing sentence and
occasionally the sentence of imprisonment is restricted to the period
already undergone. But this is not always the case so that in many
cases the accused person is made to suffer jail life for a period out
of all proportion to the gravity of the offence or even to the punishment
provided in the st_atute. The Committee has also noted that a large
G
number of persons in the overcrowded jails of today are undertrial
prisoners. The new clause seeks to remedy this unsatisfactory state of
affaii:s. The new clause provides for the setting off of the period of .....
detention as an undertrial prisoner against the sentence of imprisonment
imposed. on him. The Committee trusts that the provision contained
H in the new clause would go a long way to mitigate the evil."
M.A. AZEEZ v. ASSISTANT COLLECTOR 427
In Government of Andhra Pradesh and Anr. v. Anne Venkatesware and A ·
Ors., supra it was observed that Section 428 provides for set off of the period
of ·detention of an accused as an under-trial prisoner against the term of
imprisonment imposed on him on conviction. It only provides for a "set off'
but does not equate an "under-trial detention or the detention with
imprisonment on conviction." The provision as to set off expresses a legislative B
policy: this does not mean that it does away with the difference in the two
kinds of detention and outs things on the same footing for all purposes.

A preventive detention as was held in Rex v. Halliday ( 19 \ 7) AC 260-
268" is not punitive but precautionary measure." The object is not to punish
a man for having done something but to intercept him before he does it and c
to prevent him from doing it. No offence is proved, nor any charge is
formulated: and the justification of such detention is suspicion or reasonable
probability and there is no criminal conviction which can only be warranted
'"" by legal evidence. In this sense it is an anticipatory action. Preventive justice
requires an action to be taken to prevent apprehended objectionable activities.
In case of punitive detention the person concerned is detained by way of D
punishment after being found guilty of wrong doing where he has the fullest
opportunity to defend himself, while preventive detention is not by way of
punishment at all, but it is intended to prevent a person from indulging in any
conduct injurious to the society. This position was noticed by this Court in
Mr. Kubic Dariusz v. Union of India and Ors., AIR (1990) SC 605.
E
In Government of Andhra Pradesh and Anr. v. Anne Venkatesware and
Ors., (supra) this Court observed as follows:

"It is true that section speaks of the "period of detention"
undergone by an accused person, but it expressly says that the detention F
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 accused
on conviction must be during the investigation, enquiry or trial in
connection with the "same case" in which he has been convicted. We, G
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 term of imprisonment imposed on them."

The view was reiterated by a three-Judge Bench of this Court in
Champa/al Puniaji Shah v. State of Maharashtra, (1982] I SCC 507. H
428 SUPREME COURT REPORTS (2003] I S.C.R.

A Though learned counsel for the petitioner tried to distinguish the last
named two cases on the footing that they related to post conviction detention, ~
we do not think that the same is really of any consequence in view of the
settled legal position that detention under the preventive detention laws is not
punitive but is essentially a precautionary measure intended to prevent and
B intercept a person before he commits an infra~active act which he had done
earlier.

The petition is without any merit and is dismissed.

R.P. Petition dismissed.

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