JUDGMENT :

P.N. Prakash, J.

Prayer: Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus to call for the records in No.6332/t.k.2/2021 dated 23.03.2021 passed by the second respondent and quash the same and direct the second respondent to grant 30 days leave without escort to the convict, viz., Wasib Khan, S/o Liaquat Ali, confined at the Central Prison, Puzhal-I.

1. A short, but, very interesting legal conundrum has been raised by Mr.Mohamed Saifullah in this case, to appreciate which, we need to state the minimum facts.

2. Wasib Khan, the petitioner herein, was convicted on 21.11.2019 by the I Additional Special Court for NDPS Act Cases, Chennai, of the offences under Sections 8(c) read with Sections 22(c) and 8(c) read with Section 29 and 8(c) read with Sections 27-A and 8(c) read with Section 23(c) read with Section 28 of the NDPS Act for possession of commercial quantity of Alprazolam tablets and was sentenced to undergo 10 years rigorous imprisonment for each of the offences, but, the sentences were ordered to run concurrently, together with the benefit of set off under Section 428 Cr.P.C. Challenging the aforesaid conviction and sentences, Wasib Khan has filed Crl.A.125 of 2020 and the same is under consideration by this Court.

3. While so, a representation dated 10.01.2021 was given by Wasib Khan’s mother Ramzan Beevi Yakit Ali seeking one month ordinary leave for the former. Since no order was passed on the said representation by the Prison authorities, a writ petition being W.P. No.4574 of 2021 was filed by Wasib Khan which was disposed of on 10.03.2021 directing the Prison authorities to dispose of the representation dated 10.01.2021 within a period of ten days, in accordance with the Tamil Nadu Suspension of Sentence Rules, 1982 (for brevity “the Sentence Suspension Rules”), pursuant to which, the said representation was considered and rejected by the Superintendent, Central Prison-I, Puzhal, vide the impugned order dated 23.03.2021, aggrieved by which, the present writ petition has been filed by Wasib Khan, besides seeking a direction to the second respondent to grant 30 days leave to him without escort.

4. Justifying the impugned order of rejection, the Superintendent, Central Prison, Puzhal, has filed a counter affidavit dated 04.06.2021.

5. Heard Mr. Mohamed Saifullah, learned counsel for Wasib Khan and Mr.R. Muniapparaj, learned Additional Public Prosecutor appearing for the respondents/State.

6. Mr. Mohamed Saifullah cited several rulings of the Supreme Court to assail the impugned order, which we are not deliberately adverting to, as we agree with him on most of the aspects covered under those rulings. To appreciate his arguments, it may be necessary to state the grounds on which Wasib Khan’s leave application has been turned down by the impugned order. The impugned order cites two reasons for rejection of leave for Wasib Khan.

(a) Wasib Khan has not completed three years of imprisonment, as required under Rule 22 of the Sentence Suspension Rules; and

(b) Wasib Khan’s appeal challenging his conviction and sentence is pending in the appellate Court, viz., High Court.

7. With regard to reason (a) above, Mr. Mohamed Saifullah submitted that Wasib Khan was in detention since his arrest on 13.02.2016 and he continued to remain in the prison as an under trial without bail and therefore, under Section 428 Cr.P.C., if the period of custody is calculated from the date of commencement of his incarceration, he would fulfil the requirement of Rule 22 of the Sentence Suspension Rules.

8. It is seen that in the impugned order, the period of detention has been calculated from the date of conviction and sentence, viz., 21.11.2019 and the period of Wasib Khan’s detention as an under trial was not reckoned at all. In the counter affidavit, it is stated that Wasib Khan has completed 5 years, 3 months and 16 days as on 25.05.2021 by including the period of detention as an under trial