Preventive detention period cannot be set off under S.428, unless it coincides with punitive or under trial detention. Consideration of preventive detention for set off under S.428 is supported by precedents.

1. The simple question for consideration in this petition under S.482 of the Code of Criminal Procedure is whether under any circumstance the period of preventive detention could be set off under S.428 of the Code against the term of imprisonment imposed on a person.

2. Petitioners were arrested in connection with an offence punishable under S.135(1)(i) of the Customs Act, 1962 and they were in judicial custody ever since on the basis of orders of remand by the Additional Chief Judicial Magistrate, Economic Offences, Ernakulam. Thereafter the complaint filed by the Assistant Collector, Central Excise. Trivandrum against them and seven others was taken to file by the Magistrate as C.C. 71/85. While they were thus in judicial custody pending investigation and subsequently pending trial orders were issued against them under S.3 of the COFEPOSA and served on 17-6-1985. They were ordered to be in preventive detention in the same Central Prison. While so their trial in C.C. 71/85 was being continued and they were being periodically produced in court and remanded. Finally on 3-3-1986 they were convicted and sentenced to imprisonment for two years each judgment provided that the period during which they were in remand during investigation and as under trial prisoners will be set off against the term of imprisonment under S.428. Orders of detention under the COFEPOSA was quashed on 5-1-1987, but they continued to be in jail. The question is whether the period from 7-6-1985 upto 5-1-1987 when they were also under preventive detention could be included in the set off under S.428.

3. What S.428 of the Code says is that when a person is sentenced on conviction to a term of imprisonment, the period of detention undergone by him during the investigation, inquiry or trial in the case in which he was convicted and sentenced and before the date of such conviction, shall be set off against the term of imprisonment and his liability shall be restricted to the remainder of the term of imprisonment. The section is very clear and unambiguous. What is allowed as set off prior to the conviction and sentence is only the period of detention during investigation, inquiry or trial in the said case. The Section is inserted in the new Code to mitigate the evils of delayed trials, to prevent overcrowding in jails and to uphold public interest. The provision is mandatory and not discretionary and it is available even to persons who are sentenced before the new Code came into force, but the sentence is still running. This Section does not equate pre-conviction detention with imprisonment on conviction and does not do away with the difference in the two kinds of detention and put them on the same footing for all purposes. It only provides for a set off. The Section is in absolute terms and set off cannot be refused even on the ground that pre-conviction detention was taken into account in exercising the sentencing discretion. Since the section speaks in unambiguous terms that detention mentioned therein refers only to the detention during the investigation, inquiry or trial in connection with the 'same case' in which the accused person has been convicted, the period during which he was in preventive detention under the MISA or COFEPOSA cannot be set off under S.428 against the term of imprisonment imposed on him.

4. Then the question that arises for consideration is whether the period during which the petitioners were in preventive detention could for any reason be considered as period during which they were in detention as under trial prisoners or persons serving out a sentence on conviction or prisoners during investigation. It is true that the preventive detention period cannot be considered as detention pursuant to conviction or detention as that of an under trial. But there can be no bar to preventive detention, punitive detention and detention during investigation, enquiry or trial coinciding and continuing simultaneously. There is no prohibition