S. 428 of the Code is applicable to a sentence passed under the Border Security Force Act, 1968, as the Act does not contain any provision which militates against the applicability of S. 428 of the Code.

Monoj Kumar Mukherjee, J. : - The question which requires an answer in this Rule is whether a person undergoing imprisonment, on his conviction by the Security Force Court under the Border Security Force Act 1968 ('Act' for short), is entitled to the benefit of S. 428 of the Cr. P.C. 1973 (hereinafter referred to as the 'Code). The question arises in this way.

2. Anand Singh Bisht, the petitioner herein, was a member of the Border Security Force and as such was subject to the Act and the rules made thereunder. On May 13, 1984 he was arrested and detained in the custody of Border Security Force (BSF for short) for alleged commission of an offence under S. 307 of the I.P.C. read with S. 46 of the Act. He was tried for the said offence by the Security Force Court, constituted under the Act, and was convicted and sentenced to suffer imprisonment for one year. After the findings and the sentence of the said Court were confirmed by the Inspector General of BSF, the respondent 2 herein, in accordance with the Act on May 20, 1985, he was removed from the custody of BSF and lodged in Berhampore Central Jail to serve out the sentence. Thereafter he filed a petition under Art. 226 of the Constitution contending that the period of detention undergone by him prior to his conviction as undertrial prisoner must be set off under S. 428 of the Code, against the sentence imposed upon him and praying for his release forthwith as, according to him, the period of his pre-conviction detention was more than one year. On that petition the present Rule nisi for a Writ of Habeas Corpus was issued.

3. While showing cause against the Rule Nisi, the BSF authorities did not dispute that the petitioner was in detention for more than one year as an undertrial prisoner but they contended that the Act was a special law within the meaning of S. 5 of the Code and therefore in view of the provision of the said section of the Code and for that matter, the provision of S. 428 thereof would not be applicable. According to them, there was also no provision either in the Code or in the Act to indicate that S. 428 of the Code was "a specific provision to the contrary" within the meaning of S. 5 of the Code so as to make it applicable. In support of the above contentions reliance was placed upon the decision of Delhi High Court in the case of F. R. Jesuratnam v. Chief of Air Staff, reported in 1976 Cri LJ 65, and the decisions of the Madras High Court in the cases of P. P. Chandrasekharan v. Govt. of India, reported in 1977 Cri LJ 677 and T. S. Ramani v. Supdt. of Prisons, Madras reported in 1984 Cri LJ 892.

4. On behalf of the petitioner it was however urged that though the Act was a special law within the meaning of S. 5 of the Code, there was no provision in the Act which militated against the applicability of S. 428 of the Code. Reliance was placed on behalf of the petitioner on the judgment of the Kerala High Court in the case of Subramoniam v. O. C. Armoured Static Workshop, reported in 1979 Cri LJ 617, in support of the above contention.

5. S. 5 of the Code, from which the present controversy stems, reads as under : -

"Saving : - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

6. In interpreting S. 5 in the case of Maru Ram v. Union of India, reported in AIR 1980 SC 2147 : (1980 Cri LJ 1440), the Supreme Court observed as under :

"The anatomy of this saying section is simple, yet subtle. Broadly speaking there are three components to be separated. Firstly, the procedure code generally governs the matters covered by it. Secondly, if a special or local law exists covering the same area (emphasis ours) this latter law will be saved and will prevail.................. Now comes the third component which may be clinching. I