ORDER :

M.M.SUNDRESH, J.

Challenging the order dated 05.03.2021 passed by the third respondent, the present writ petition has been filed.

2. The petitioner is the convict pursuant to the judgment rendered by the II Additional Special Court under NDPS Act, Chennai, dated 19.12.2019 under the NDPS Act, imposing rigorous imprisonment for a period of 10 years. The trial Court had granted set off, invoking Section 428 Cr.P.C. while rendering the judgment.

3. The petitioner sought for leave on the premise that his presence is required for the family. By the impugned order dated 05.03.2021, it was rejected on the ground that he has completed the period of one year and seven months from the date of conviction. Challenging the same, the present writ petition has been filed.

4. Learned counsel appearing for the petitioner submitted that the impugned order cannot be sustained in the eye of law. The petitioner has been under incarceration right from the date of his initial arrest and, therefore, during the pendency of the trial, he did not come out. The trial Court exercised the power under Section 428 Cr.P.C by giving the benefit for a period of incarceration undergone by him. Therefore, the impugned order has been passed on a wrong factual premise. If the third respondent who passed the impugned order does not have jurisdiction, then he ought not to have passed the order. Reliance has been made on the Division Bench judgment of this Court dated 26.09.2018 in Selvi Vs. The Secretary, Home Department, Government of Tamil Nadu and Others reported in CDJ 2018 MHC 6123 wherein, this Court was pleased to consider the ambit and scope of Rule 22(1) of the Tamil Nadu Suspension of Sentence Rules, 1982 and the relevant paragraphs read as under:

"3. For better appreciation, Rule 22(1) of the Tamil Nadu Suspension of Sentence Rules, 1982 is, accordingly, extracted hereunder:

22. Eligibility for ordinary leave:

(1) No prisoner shall be granted ordinary leave unless he has been sentenced by a court in this State to imprisonment for a term of imprisonment for life for an offence against any law other than a law relating to a matter to which the executive power of the Union Government extends and he has completed three years of imprisonment from the date of initial imprisonment."

4. The aforesaid rule makes a mention about the initial imprisonment to be reckoned for the purpose of calculating three years of incarceration. Therefore, the period undergone by the detenu pending trial also will have to be taken into consideration for reckoning the three years term.

5. The learned Additional Public Prosecutor would also submit that if that is taken into consideration, the detenu would be completing three years period on 17.08.2018.

6. It appears that there is no other objection other than the technical one raised in the rejection order. Therefore, in the light of the aforesaid rule, we are of the view that the rejection order cannot be sustained. While interpreting rule, we have to adopt a purposive interpretation, keeping in view of liberty of a convict is concerned. Under Section 428 of the Code of Criminal Procedure also, the detenu is entitled for set off. In such view of the matter, we are inclined to set aside the order dated 12.07.2018, though, it is not under challenge herein and accordingly, it is set aside. Consequently, the respondents are hereby directed to grant 15 days ordinary leave to the detenu, viz., namely Karuppasamy @ Rajendran, S/o.Murugesan, aged about 42 years, Convict Prisoner No.CP.9714, detained at Central Prison, Madurai, starting from 28.09.2018, subject to the usual conditions that can be imposed. IT is made clear that after the aforesaid period is over, the detenu will have to be returned back to the prison."

5. Learned counsel appearing for the petitioner has made further reliance upon the orders passed by the Hon'ble Apex Court in Suo Motu Writ Petition (C) No.1 of 2020 reported in CDJ 2021 SC 334 with respect to the need for decongest