( 1 ) WHETHER the period during which an accused person remains in detention before his conviction falls within the ambit of the expression Sactual imprisonment appearing in Rule 3 (1) and (2) of the Prisons (Bombay Furlough and Parole) Rules, 1959 (hereinafter referred to as Sthe Rules) as applicable to the State of Gujarat is the question which arises for determination in these appeals filed under Clause 15 of the letters Patent.

( 2 ) FOR the sake of convenience, we have taken the facts from letters Patent Appeal No. 498 of 2005.

( 3 ) THE appellant was arrested on 8. 3. 2002 in connection with the criminal case registered against him under Section 302 read with Section 149 of the Indian Penal Code vide F. I. R no. 55 of 2002 dated 8. 3. 2002. He was tried in the Court of additional Sessions Judge (5th Fast Track Court), Nadiad. He was convicted and sentenced to life imprisonment vide judgement dated April 1, 2004. After some time, he filed special Criminal Application No. 1206 of 2004 in this Court for his release on furlough. The same was disposed of by the learned Single Judge on 26. 11. 2004 with the observation that he may file an application before the competent authority. The latter was directed to decide the same within 10 days. Thereafter, the appellant filed an application under Rule 3 (2) of the Rules for grant of furlough by claiming that he was an agriculturist of village Juni Akol, Tal. Khambhat, and there was none to look after his family. The concerned authority rejected the application on the ground that his case is not covered by Rule 3 (2) of the Rules, inasmuch as, on the date of filing of application he had not undergone 2 years imprisonment after conviction. The decision of the competent authority was conveyed to the appellant by the office of the Public Prosecutor vide letter dated 6. 12. 2004.

( 4 ) THE appellant challenged the aforementioned decision in special Civil Application No. 1386 of 2004. He relied on the judgement of the Division Bench of the Bombay High Court in p. D. Gajbhiye Vs. State of Maharashtra 1994 Criminal Law journal 2555 and pleaded that he is entitled to furlough as of right because he had already undergone more than 2 years actual imprisonment. The learned Single Judge relied on order dated 14. 9. 2001 passed by a coordinate Bench in special Criminal Application No. 837 of 2000 and dismissed the Special Civil Application.

( 5 ) SHRI Bhushan Oza, argued that the expression Sactual imprisonment occurring in sub-rules (1) and (2) of Rule 3 of the Rules is not synonyms with imprisonment after conviction and sentence and the learned Single Judge committed a serious error by declining the appellants prayer for grant of furlough. He then submitted that the detention suffered by an accused person before imposition of sentence as a consequence of his conviction for a criminal offence is required to be computed for deciding the issue relating to his entitlement to be released on furlough in terms of sub-rule (1) and (2) of Rule 3. Shri Oza relied on the judgement of the Full Bench of this Court in Bhikhabhai devshi Vs. State of Gujarat and ors.- AIR 1987 Gujarat 136 and of the Division Bench of Bombay High Court in P. D. Gajbhiye Vs. State of Maharashtra (supra) to support his contention that the appellants are entitled to furlough after completing the actual imprisonment of two years including the period during which they remained in detention before the date of conviction. He then submitted that the view expressed by the learned Single Judge in Special criminal Application No. 837 of 2000 - Abdul Wahab Abdul majid Bloch Vs. State of Gujarat which constitutes the foundation of the orders under challenge does not reflect the correct legal position and the contrary view expressed by the Division Bench of the Bombay High Court in P. D. Gajbhiyes case should be accepted as representing correct legal position.

( 6 ) SHRI A. Y. Khogje, learned Additional Public Prosecutor ar