MALIYAKKAL ABDUL AZEEZ versus ASSISTANT COLLECTOR, KERALA AND ANR.

Citation: [2003] 1 S.C.R. 423 · Decided: 17-01-2003 · Supreme Court of India · Bench: SHIVARAJ V. PATIL, ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

MALIY AKKAL 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. 
State of Maharashtra and Anr. v. Najakat Alia Mubarak Ali, (2001) 6 
sec 311, cited. 
Rex v. Halliday 1917 AC 260, referred to. 
F 
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. 
·~- .· 
423 
H 
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 re
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