The legal principle established is that under S.428 of the Cr.P.C., an accused person is entitled to set off the period of detention undergone during investigation, inquiry, or trial against the term of imprisonment imposed on conviction.

Revision petitioners are Al and A2 in C.C.123 of 1985 of the Addl. Chief Judicial Magistrate's Court (Economic Offences), Ernakulam. They stood charged under S.135(I)(i) of the Customs Act and S.85(I)(a) of the Gold (Control) Act. They were found guilty by the trial Court and were convicted and sentenced to suffer rigorous imprisonment for one year for each of the two offences besides a fine of Rs.25,000/- and in default of payment of fine there is direction to suffer simple imprisonment for six months more. They filed CrI.A. 69 of 1987 before the Sessions Court, Ernakulam. The IV th Addl. Sessions Judge heard the appeal and dismissed the same confirming the conviction and sentence.

2. The prosecution case is that on receipt of information that revision petitioners had secreted contraband gold in Room No.316 of the Dwaraka Hotel, Ernakulam, P.W.I the Superintendent of Customs II, Cochin visited the room on 2-5-1984 at about 9.20 a.m. and on search he found that 60 gold biscuits weighing 6990 grams were concealed in M.O.3 suit case. Prosecution examined P.Ws.1 to 8 and marked Exts.P1 to P47. M .Os.1 to 3 were also marked.

3. Learned counsel for the revision petitioners did not address any arguments on the factual findings of the Courts below. His only contention is that the revision petitioners are entitled to set off under S.428 of the Cr.P.C. for the period during which they were detained under the COFEPOSA. The only question to be considered in (his revision is as to whether the revision petitioners are entitled to set off during 19-6-1984 to 19-6-1985. It is admitted that during this period revision petitioners were detained in the Central Prison, Trivandrum under COFEPOSA. Counsel for the revision petitioners submitted that pending investigation of the customs case (O.R.5 of 1984 which has been refiled as O.R.1.4 of 1985) revision petitioners were detained in the Central Prison and that being the position they are entitled to set off. Counsel further pointed out that though second revision petitioner (A2) was granted bail on 31-5-1984 it was cancelled by the Chief Judicial Magistrate and since then she was also undergoing detention in the Central Prison.

4. Counsel for the revision petitioners invited my attention to a letter sent by the Additional Chief Judicial Magistrate, Ernakulam to the Superintendent, Central Prison, Trivandrum dated 18-6-1985 wherein it is stated that the revision petitioners against whom O.R.14 of 1985 has been registered are undertrial prisoners before his. Court. The Addl. Chief Judicial Magistrate wrote to the Superintendent of! he Central Prison that as their release from the jail under COFEPOSA falls on 19-6-1985 the bail bonds may begot executed by them and the bonds be returned to his Court Counsel relied on this communication to show that the revision petitioners were undertrial prisoners during the time when they were detained under COFEPOSA. Counsel further relied' on the decision of this Court in Juanhaniff v. State of Kerala (1987 (I) KLT 437) and contended that even without the preventive detention revision petitioners were actually in jail suffering imprisonment and therefore they are entitled to set off under S.425 Cr.P.C. In the above case this Court allowed the request of the accused and directed to reckon the period of their detention under the COFEPOSA for the purpose of allowing set off under S.428 of the Cr.P.C. Learned Central Govern men (Pleader submitted that the period during which the revision petitioners were under detention under COFEPOSA cannot be set off under S.428 Cr.P.C. against the term of imprisonment imposed on them. -

5. Admittedly the revision petitioners were detained under COFEPOSA during 19-6-1984 to 19-6-1985. It was during this period that the investigation of the customs case (O.R.5 of 1984 which has been refiled as O.R.14 of 1985) was being conducted. S.428 of the Cr.P.C. provides that where an accused person has on conviction, been sentenced to