ANAND SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The question which requires an answer in this Rule is whether a person undergoing imprisonment, on his conviction by the Security Force Court under the Border Security Force Act 1968 ('Act' for short), is entitled to the benefit of S. 428 of the Cr. P.C. 1973 (hereinafter referred to as the 'Code). The question arises in this way.

(2.) Anand Singh Bisht, the petitioner herein, was a member of the Border Security Force and as such was subject to the Act and the rules made thereunder. On May 13, 1984 he was arrested and detained in the custody of Border Security Force (BSF for short) for alleged commission of an offence under S. 307 of the I.P.C. read with S. 46 of the Act. He was tried for the said offence by the Security Force Court, constituted under the Act, and was convicted and sentenced to suffer imprisonment for one year. After the findings and the sentence of the said Court were confirmed by the Inspector General of BSF, the respondent 2 herein, in accordance with the Act on May 20, 1985, he was removed from the custody of BSF and lodged in Berhampore Central Jail to serve out the sentence. Thereafter he filed a petition under Art. 226 of the Constitution contending that the period of detention undergone by him prior to his conviction as undertrial prisoner must be set off under S. 428 of the Code, against the sentence imposed upon him and praying for his release forthwith as, according to him, the period of his pre-conviction detention was more than one year. On that petition the present Rule nisi for a Writ of Habeas Corpus was issued.

(3.) While showing cause against the Rule Nisi, the BSF authorities did not dispute that the petitioner was in detention for more than one year as an undertrial prisoner but they contended that the Act was a special law within the meaning of S. 5 of the Code and therefore in view of the provision of the said section of the Code and for that matter, the provision of S. 428 thereof would not be applicable. According to them, there was also no provision either in the Code or in the Act to indicate that S. 428 of the Code was "a specific provision to the contrary" within the meaning of S. 5 of the Code so as to make it applicable. In support of the above contentions reliance was placed upon the decision of Delhi High Court in the case of F. R. Jesuratnam v. Chief of Air Staff, reported in 1976 Cri LJ 65, and the decisions of the Madras High Court in the cases of P. P. Chandrasekharan v. Govt. of India, reported in 1977 Cri LJ 677 and T. S. Ramani v. Supdt. of Prisons, Madras reported in 1984 Cri LJ 892.