The central legal point established in the judgment is the need for a fair and just procedure in imposing default sentences and the enforcement of fundamental rights under Article 21 of the Constitution of India.

G.M. AKBAR ALI,J.,

1. The petitioner was confined in Central Prison, Puzhal, Chennai on the basis of common judgment made in C.C No.9 of 2000 to C.C No.11 of 2000 and C.C.No.13 of 2000 to 51 of 2000 by the learned Additional Special Judge for CBI for offences under Sec.477-A, 468, r/w 471, 420 IPC and under Sec.13 (1)(d) r/w 13(1) (2) of PC Act. There are 41 cases. The conviction and sentence passed against the appellant in each case is detailed hereunder:

The sentence of imprisonment in all the cases are ordered to run concurrently with a benefit of set off under Sec.428 Cr.P.C. However the total fine amount payable was Rs. 2,10,000/- The default sentence will run to 252 months. The relief sought in this petition is to order the default sentence to run concurrently.

2. The facts of the case, in brief, is as follows:

The petitioner is in jail from 16.12.2002 till date i.e., for more than 8 = years. The maximum punishment imposed on the above cases is only 2 years R.I for each offence and all the sentences were ordered to run concurrently. However, the fine amount imposed in each calender case was Rs.5000/-, thereby a total sum of Rs.2,10,000/-has became payable. Since the fine amount could not be paid as the petitioner is poor, he is undergoing the imprisonment .

3. According to the petitioner the benefit of Sec.428 Cr.P.C applies not only to the substantive sentence, but also to the imprisonment in default of payment of fine. The petitioner is in judicial custody for more than two years, which is the maximum sentence, but he was undergoing imprisonment for the past six and half years, which is illegal and therefore, the petition is filed.

4. On notice, the respondent filed a counter. The main contention raised by the respondent is that as per the common judgment, in all the Calendar cases, the appellant was sentenced to undergo 2 years RI for all the offences and in all the cases the sentences were ordered to run concurrently. However, he has been imposed a fine of Rs.2,10,000/- with default clause.

5. The total sentence works out to be 2 years and 252 months of default sentence for non payment of fine. The due date of the petitioner's release is only on 15.12.2025.

6. As per Rule 242 (1) of the Tamil Nadu Prison Manual Vol.II “sentences imposed in default of payment of fine cannot run concurrently”. Therefore, the petition is liable to be dismissed.

7. Supporting the contention of the petitioner, Mr.Radhakrishnan, learned counsel for the petitioner submitted that Sec.428 Cr.P.C applies not only in relation to a substantive sentence of imprisonment but also in relation to a sentence of imprisonment in default of payment of fine amount. The learned counsel pointed out that for default in payment of fine amount if consecutive sentence is imposed, the petitioner has to undergo 252 months imprisonment, equivalent to 21 years, which is against the law of the land. The maximum substantive sentence imposed was only 2 years, which was ordered to run concurrently and while imposing the fine the trial court has stated that in default, the petitioner has to undergo sentence of two months for each default. When the judgment is silent about whether the default period is to run either concurrently or consecutively it has to be construed that the default sentences also to run concurrently.

8. The learned counsel pointed out that in any event, the default sentence cannot exceed of the term of imprisonment and in the case on hand, when the maximum sentence imposed was only two years, the petitioner is in custody for more than 8= years and the contention of the authorities that he has to undergo further sentence till 2025 is against law and therefore illegal detention.

9. The learned counsel relied on a decision reported in AIR 1975 SC 164 (Boucher Pierre Andre vs Superintendent, Central Jail, Tihar, New Delhi and another) where the Apex Court has considered Sec.428 Cr.P.C and has held as follows:

Section 428 applies not onl