JUDGMENT

O. CHINNAPPA REDDY, J.:— This petition for review and the petition for issue of Writ under Art. 32 were argued by Shri Jethmalani with, what appeared to us to be more than his customary vehemence and emotion. Nonetheless, we confess, we are not impressed.

2. By our judgment dated Aug. 12, 1981 (reported in AIR 1981 SC 1675), we had 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 heads of charges and sentencing him to suffer imprisonment for various terms ranging from two years to four years and to the payment of fine of Rs. 10,000/- on each of different counts. Shri Jethmalani contended that though he had argued that the period during which the petitioner had been preventively detained under the Maintenance of Internal Security Act and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act should be set off against the sentence of imprisonment imposed upon him, we had not touched upon the point. He also drew our attention to a reference to set off in the written submissions given to us after the hearing of the case. We may mention that what was argued before us was not 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 to be imposed on the petitioner, which question was considered by us. But, we will let that pass, accept Mr. Jethmalanis word for it and proceed to consider the question straightway.

3. It appears that the petitioner was detained first under the provisions of the MISA and later under the provisions of the COFEPOSA. The periods of detention were September 17, 1974 to April 18, 1975, July 1, 1975 to November 21, 1975 and May 20, 1976 to March 22, 1977. We are told that the orders of detention, which have not been produced before us, were based on facts which were the very subject matter of the criminal case. The learned Additional Chief Presidency Magistrate had convicted the petitioner by his judgment dated December 13, 1971 but that was set aside by the High Court by their judgment dated April (Feb.) 20, 1974. The State of Maharashtra filed an application for special leave under Article 136 of the Constitution on November 30, 1974 and special leave was granted by this Court on April 15, 1975. It was noticed by this Court at the time of granting special leave that the petitioner was then in preventive detention and it was directed that in case he was released from detention but rearrested in connection with the case he should be released on bail on the same terms as those on which bail had been previously granted by the High Court. The submission of Shri Jethmalani was that the total of the three periods of detention. should be set off against the sentence of imprisonment imposed upon him. He relied upon the decision of this Court in Govt. of Andh Pra v. Anne Venkateswara Rao, AIR 1977 SC 1096.

4. We are unable to agree with the submission of Shri Jethmalani. In the very case cited by the learned counsel, the Court negatived the contention that the expression period of detention in Sec. 428 Code of Criminal Procedure included the detention under the Preventive Detention Act or the Maintenance of Internal Security Act. It was observed (Para 7) :

"It is true that the section speaks of the period of detention undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been convicted. The section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be during the investigation, enquiry or trial in connection with the same case in which he has been convicted. We therefore agree with t