SANTOSH KISAN SAPKALE Vs. REPUBLIC OF INDIA

JUDGEMENT

(1.) This is an application filed by the petitioner under Articles 226 and 227 of the Constitution of India praying for setting off his period of detention in Surat Jail from 15.06.2015 to 21.12.2015 against the sentence imposed on him in connection with S.P.E. Case No.2 of 2014 registered in the court of learned Additional Special C.J.M. (C.B.I.), Bhubaneswar under Section 428 Cr.P.C.

(2.) Mr. Acharya, learned counsel for the petitioner submitted that during the year 2013, D.C.B. C.R. No.3 of 2013 was registered against the petitioner and others under different provisions of the Indian Penal Code and the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 in the State of Gujarat, to be referred hereinafter as "1st case". On 04.06.2014, R.C. Case No.7/S/2014-SCB/KOL corresponding to S.P.E. Case No.2 of 2014 was registered against the petitioner and others under Sections 120-B, 420, 406, 467, 468, 671/34 I.P.C. and Sections 4, 5 and 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 by the Central Bureau of Investigation (for short "C.B.I.") to be referred hereinafter as "2nd case". On 04.06.2015, the petitioner surrendered in connection with the "1st case" and there, on completion of police remand, he was remanded to jail custody on 15.06.2015 and lodged at Lajpur Jail, Surat as an under trial prisoner, for short "UTP". On 22.12.2015 while continuing as an "UTP" in Lajpur Jail, he was shown as arrested in connection with "2nd case". On 18.06.2016, the C.B.I. submitted the charge sheet in the "2nd case". On 12.04.2017, the petitioner was produced before the learned trial court in connection with the "2nd case" and on that date, the petitioner filed a memo pleading guilty to the offences charged. On 15.04.2017 vide Annexure-1, the petitioner was convicted for offences under Sections 409/420/120-B of I,P.C. read with Sections 4, 5 and 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 in connection with the "2nd case" and was sentenced to undergo R.I. for five years and fine of Rs.10,000/- for the offence under Section 409 I.P.C., in default to pay fine, to further undergo R.I. for two months; R.I. for three years and fine of Rs.5,000/- for the offence under Section 420 I.P.C., in default to pay fine, to further undergo R.I. for one month; R.I. for two years for the offence under Section 120-B I.P.C.; R.I. for two years for offence under Section 4 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978; R.I. for two years for the offence under Section 5 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and R.I. for one year for offence under Section 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and directed that all the sentences would run concurrently. Further convicts Astha Goat Farming India Private Limited and Astha International Limited were directed to pay compensation amount of Rs.75 Crores.

(3.) The petitioner being aggrieved by quantum of sentences, approached the learned Sessions Judge in Criminal Appeal No.69 of 2017. The said appeal was also disposed of by the learned Special Judge, C.B.I. Court No.III, Bhubaneswar, wherein the learned judge vide judgment dated 08.08.2018 reduced the sentence passed under Section 409 I.P.C. from five years to four years. Later on, the petitioner filed Criminal Revision No.894 of 2018 against the above noted judgment of the learned Special Judge before this Court which was dismissed on 13.02.2019. While so, the Superintendent, Special Jail, Bhubaneswar (Welfare Services) vide Anenxure-2 has issued a Custody Certificate indicating the period of detention of the petitioner vis- -vis the "2nd case" to be from 22.12.2015 to 14.04.2017. According to Mr. Acharya, grievance of the petitioner is that though the offences in both "1st case" and "2nd case" in which he has undergone imprisonment as "UTP" are similar in nature, yet the Bhubaneswar Jail Authority while granting the Custody Certificate under Anenxure-2 has only taken into account the "UTP" period from 22.12.2015 to 14.04.2017 of the "2nd case" and has ignored the period of detention he has undergone as an "UTP" from 15.06.2015 to 21.12.2015 at Surat jail in connection with the "1st case" though as per Annexure-3, the petitioner was in Surat jail with effect from 15.06.2015 in connection with "1st case" till his production at Bhubaneswar in connection with "2nd case". Therefore, the petitioner is losing the benefit of "UTP" period from 15.06.2015 to 21.12.2015 for the purpose of set off under Section 428 Cr.P.C. with regard to the "2nd case". Accordingly, the prayer has been made to take into account the above noted period for the purpose of set off in the "2nd case". In this context, Mr. Acharya has relied solely on the judgment of the Hon'ble Supreme Court as rendered in the case of State of Maharashtra and another v. Najakat alias Mubarak Ali , 2001 6 SCC 311, more particularly on paragraphs 16 and 18 of the said judgment.