GLADYS L PAULSAMY Vs. DEPUTY INSPECTOR GENERAL

JUDGEMENT

(1.) THE petitioner is the wife of the detenu. According to her, the detenu has been detained even beyond the expiry of the sentence imposed on him. The detenu was involved in a case relating to offences under Narcotic Drugs and Psychotropic Substances Act 1985. After trial, he was convicted in C. C. No. 521 of 1998 and sentenced to undergo Rigorous Imprisonment to 15 years and to pay a fine of Rs. 2,00,000/- and in default to undergo Simple Imprisonment for a period of two years and he was also convicted under Section 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 and sentenced to undergo for a term of 15 years and to pay a fine of Rs. 2 lakhs and in default to undergo 2 years Simple Imprisonment. The period of sentence undergone by the accused was directed to be set off in the judgment dated 15-09-2006. The detenu preferred an appeal, C. A. No. 868 of 2000 by judgment dated 01-08-2003 the Trial Court's sentence and conviction were confirmed. Against that, he appealed to the Supreme Court. In C. A. No. 57 of 2004, the Supreme Court by its judgment dated 26-10-2004 allowed the appeal in part, while upholding the conviction reduced the sentence to 10 years from 15 years and the fine was also reduced. The detenu is now serving the unexpired period of sentence. The detenu was arrested on 08-05-1998 at Madurai since he was found in possession of 2kgs of heroin and he was remanded to judicial custody on 09-05-1998 and he remained there until he was released on bail on 09-11-1999. He was out on bail between 11-11-1999 to 14-03-2000. The bail was cancelled by the Supreme Court and he was taken back into custody pursuant to the said order. During the period when he was serving his sentence, the detenu had went out on parole for about 230days. The details are given as follows: <FRM>JUDGEMENT_2867_TLMAD0_2008Html1.htm</FRM> It is admitted on behalf of the petitioner that the period of four months and three days, viz. , 125 days when he was out on bail, the detenu will have to undergo imprisonment, to complete the sentence of ten years. According to the petitioner's calculation, this period of 125 days would expire on 11-09-2008 and any detention thereafter would be illegal and therefore, this habeas corpus petition has been filed.

(2.) MR. S. Shanmuga Velayutham, learned Senior Counsel would submit that the decision in Sunil Fulchand Shah Vs. Union of India and others (2000 SCC Cri. 659) is squarely on the point where the Constitution Bench has clearly said that the period during which the detenu is on parole must be counted towards the total period of detention. The learned Senior Counsel also referred to Dadu alias Tulsidas Vs. State of Maharashtra (2000 SCC Cri. 1528), Shri Bhagwan Vs. State of Rajasthan (2001 SCC (Cri)1095), State of Haryana Vs. Nauratta Singh and others (2000 SCC Cri. 711) and the unreported judgment of this Court in H. C. P. No. 794 of 2008 (N. Padmini Vs. State) dated 02-07-2008. The learned Senior Counsel submitted that even if there are any Rules which provide for inclusion for the period of parole for calculating the period of imprisonment, the same cannot be taken into account. To support this, the learned Senior Counsel referred to 2001 SCC (Cri) 1095 (cited supra), where the Supreme Court has clearly held that the Rules framed under the Prisons Act or the Jail Manual do not affect the total period which the prisoner has to suffer, but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time.

(3.) THE learned Additional Public Prosecutor on the other hand would submit that the Prison Rules and the Manual are clear and it provides that the period of leave will not account towards sentence. The learned Additional Public Prosecutor also referred to Avtar Singh Vs. State of Haryana (2002 SCC (Cri) 504) where it was held that the period of temporary release of a prisoner on parole needs to be counted to the total period of detention but the said condition can be curtailed by the legislative acts, rules or terms of grant of parole. The learned Additional Public Prosecutor would therefore, submit that the law laid down by the Constitution Bench to the effect that the period of detention would not be automatically extended by any period of parole is subject to the condition whether any rules or instructions exist to the contrary. In the present case, there are rules regarding periods that will not count towards sentence. The relevant rules read as follows: