IMPORTANT POINT
Period of Preventive Detention under COFEPOSA Act, 1974 which is not punitive but precautionary cannot be set off u/s 428 Cr.P.C. 1973 against sentence for an offence under Customs Act, 1962.
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ORDER

Delay condoned.

2. 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.

3. 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 ) 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 Delhi High Court. Reliance is placed on a decision of this Court in State of Maharashtra and Another vs. Najakat Alia Mubarak Ali (2001 (6) SCC 311) to contend that the period is available to be set off against the period of sentence imposed on conviction under Section 135 (1) of the Customs Act, 1962 (in short the Customs Act ).

4. 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:-

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 about 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 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) Ernakulam. As noted above, he was found 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, Ernakulam was partly allowed and the custodial sentence was reduced to two years. The fine amount was maintained, but default stipulation partly modified.

5. In the revision filed before the Kerala High Court, the conviction and 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 rejected the revision on merits. The plea relating to set off was also turned down. It was held that the period spent under COFEPOSA was not to be considered as detention for the purpose of the criminal case. It was further noted that the petitioner was on bail while the detention order was passed and, therefore, cannot be treated to be an under-trial prisoner. He was in judicial custody when detained under the COFEPOSA. After detention under COFEPOSA, bail granted was not cancelled and, therefore, the petitioner was not an under-trial prisoner.

6. In support of the application for grant of leave, strong reliance was placed on the decision in State of Maharashtra and Another vs. Najakat Alia Mubarak Ali (supra). It was submitted that the period of imprisonment undergone by an accused as an under-trial during investigation, enquiry or trial of a particular case irrespective of whether it was in connection with the same case or any other can be set off against the sentence of imprisonment imposed on conviction in that particular case. It was further submitted that the facts situation is identical to those involved in Government of Andhra Pradesh and Another vs. Anne Venkatesware and Ors. (1977 (3) SCC 298).

7. In order to appreciate the stand of the petitioner. Section 428 of the Code needs to be noted. The provision reads as follows:

"Section 428: Period of detention undergone by the accused to be set off against the sentence