CHAMPALAL POONAJI SHAH versus STATE OF MAHARASHTRA

Citation: [1982] 3 S.C.R. 61 · Decided: 27-01-1982 · Supreme Court of India · Bench: O. CHINNAPPA REDDY · Disposal: Dismissed

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Judgment (excerpt)

ti 
CHAMPALAt P00NJA1I SHAH 
v. 
STATE OF MAHARASHTRA 
January 27, 1982 
[0. CHINNAPPA REDDY, A.P. SBN AND BAHARUL ISLAM, JJ.) 
Code of Criminal Procedure 1973, S. 428-Person-Preventively detained for 
different periods under MISA, COFEPOSA-Later prosecuted, convicted and 
sentenced to imprisonment-Period spent under preventive detention- Whether can 
be 'set·off' agaiiist sentence of imprisonment. 
The Presidency Magistrate convicted the [!petitioner for offences under sec. 
lion 120B of the Indian Penal Code read with section 135 of and Customs Act and 
Rule 126P(2) (ii) and (iv) of the Deience of India Rules 1962 and sentenced him 
to suffer imprisonment for various periods ranging from two years to four years 
and t6 payment of fine. 
The conviction and sentence was set aside by the 
High Court, but this Court in appeal by the State set aside the judgment of 
acquittal by the High Court and restored that of the Presidency Magistrate. The 
petitioner was alBo preventively detained for various periods first under the 
Maintenance of Internal Security Act and afterwards under the Conservation of 
Foreign Bi:chaoge and Prevention of Smuggling Activities Act 1974. 
Io the review petition and writ petition to this Court it was contended on 
behalf of the petitioner that : (1) though ii was argued in the appeal to this Court 
that the periods during which the petitioner had been preventively detained 
should be 'set off' against the sentence of imprisonment imposed upon him this 
cou~t· had not touched upon the point; and (2) this court's decision in Goyern-
ment of Andhra Pradesh and another v. Venkateswara Rao, AIR 1977 SC 1096, 
enabled the petitioner io claim the total of the three periods of detention to be 
'set off' against the sentence of imprisonment. 
Dismissing the review and writ petition. 
HELD: 1. It was not argued that the petitioner was entitled to a 'set off' 
but that the period of his detention might be taken into account in considering 
the question of the appropriate sentence be imposed on him. [62 H, 63 A] 
8 
D 
E 
2(i) In Government of Andhra Pradesh v. Venkateswara Rao, this Court 
negatived the contention that the expression period of detention in Section 428, 
G 
Code of Criminal P'rocedure 1973 included the detention under the Preventive 
Detention Act or the Maintenance of Internal Security Act. [63 F-G] 
(ii) Section 428, Code of Criminal Procedure 1973 makes it clear that the 
period of detention which it allows to be 'set -off' against the tenp of imprison .. 
ment imposed on the accused on conviction must be during the investigatio_n, 
enquiry, or trial in connection with the 'same case' 
in which he has been 
convicted. (64 A-Bl 
H 
A 
B 
c 
62 
SUPREME COURT. REPORTS 
[19821 3 s.c.i 
(iii) Ooly in circumstances where the petitioner would have unquestionably 
been in detention in connection with a criminal case if he had not been preven· 
tively detained. his preventive detention might be reckoned as detCntion as an 
undertriitl prisoner or detention pursuant to conviction, for the puq~oses of 
Section 428, Code of Criminal Procedure 1973. [64 G] 
In the instant case the petitioner had been acquitted by the High Court 
J:>efore any of the orders of detention were m.ade against him. There can, there~ 
fore, be no question of the detention being considered as detention pursuant to 
conviction nor can the detention be treated as that of an undertriaJ. [64 F] 
ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 7207 
of 1981. 
(Under Article 32 of tlie Constitution of India) 
Ram Jethmalani and Miss Rani Jethmalani for the Petitioner. 
' 
. 
. 
The Judgment of the Court was delivered by 
D 
CHINNAPPA REDDY, J. This petition for review and the petition 
E 
F' 
G 
H 
for the issue of Writ under Article 32 were argued by Sbri 
Jethmafani with; what appeared to us to be more than his customary 
vehemence and emotion. Nonetheless, we confess, we are not 
impressed. 
By our judgment dated August 12, 1981 (1), we bad set aside 
the judgment of acquittal passed by the High Court of Bombay and 
restored that of the learned Additional Chief Presidency Magistrate, 
8th Court, Esplanade, Bombay, convicting the petitioner under 
different beads of charges and sentencing him to suffer imprison· 
ment for various terms ranging from two years to four years and to 
the payment of fine of Rs. I 0,000/· on each of different counts. 
Shri Jethmalani contended that though he ha.d argued that the 
period during

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