Parole is not a suspension of sentence and should be counted towards the total period of detention unless specifically indicated otherwise by statute, jail manual, or government instructions.

D. Murugesan, J.

The petitioner is the wife of the detenu by name M.Nityanandam. The said Nityanandam was convicted for the offence under Section 8(C) read with Sections 22 and 29 of the N.D.P.S. Act by the judgment dated 31.8.99 passed by the Special Judge, Addl. Special Court under N.D.P.S. Act in C.C.No.159 of 1998 and was sentenced to undergo rigorous imprisonment for a period of 12 years and also to pay a fine of Rs.1.50 lakhs. The said judgment was taken on appeal before this Court in C.A.No.734 of 1999 and by judgment dated 6.6.2002, the conviction was confirmed and the sentence was modified to 10 years rigorous imprisonment and the fine amount was also reduced to Rs.1 lakh. By virtue of the said order, the detenu is liable to undergo the sentence for a period of 10 years. He was taken into custody on 17.5.98 and by virtue of the conviction and sentence of ten years rigorous imprisonment, his period of detention should be over on 16.5.2008. The detenu has also paid the fine of Rs.1 lakh on 16.5.2008.

2. Claiming that even after the expiry of the period of ten years, on and from 17.5.2008, the detenu has not been released and is being detained in Central Prison, Bangalore, the petitioner made an appeal to the Inspector General of Prisons, Bangalore, the Deputy Inspector General of Prisons, Chennai Range, Chennai, the Superintendent, Central Prison, Vellore and the Superintendent, Central Prison, Puzhal, Chennai. In spite of the said appeal, which was acknowledged by all of them, the detenu has not been set at liberty. Hence the petitioner, having no other alternative, effective and efficacious remedy, has approached this Court by way of the present habeas corpus petition on the ground that the detention beyond 16.5.2008 is illegal.

3. Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor would submit that while the detenu was serving the sentence, he was granted parole for a total period of 222 days, namely, 90 days from 23.3.2002 to 22.6.2002, 90 days from 21.2.2003 to 23.5.2003, 14 days from 14.11.2007 to 29.11.2007, 14 days from 24.12.2007 to 8.1.2008 and 14 days from 29.1.2008 to 13.2.2008. If the said period is excluded from the period of sentence, the detenu should undergo the sentence for a further period of 222 days from 16.5.2008. Hence the petition is misconceived.

4. We have heard Mr.L.Chandrakumar, learned counsel for the petitioner.

5. From the facts narrated, the only question that arises for consideration is whether the period for which the detenu was granted parole should be counted or not with the period of sentence. In our considered view, the issue is not res integra, as the law has been laid by the Apex Court.

6. A Constitution Bench of the Apex Court in the judgment in Sunil Fulchand Shah v. Union of India and others, 2000 SCC (Crl.) 659, while considering the said question has held in paragraph-30 as follows:-

".....The detenu is not a free man while out on parole. Even while on parole he continues to serve the sentence or undergo the period of detention in a manner different than from being in custody. Parole does not keep the period of detention in a State of suspended animation. The period of detention keeps ticking during this period of temporary release of a detenu also because a parolee remains in legal custody of the State and under the control of its agents, subject at any time, for breach of condition, to be returned to custody.........The period of detention would not stand automatically extended by any period of parole granted to the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole, to the contrary. The period during which the detenu is on parole, therefore, requires to be counted towards the total period of detention."

7. The judgment of the Constitution Bench was followed by the Apex Court in Dadu alias Tulsidas v. State of Maharashtra, 2000 SCC (Crl.) 1528, where the Apex Court considered elaborately the s