Order dated : 05.09.2022
H.C.P.No.1669 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.09.2022
Coram
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
H.C.P.No.1669 of 2022
Thara
W/o.Devaraj .. Petitioner
Vs.
The State represented by its
1.The Superintendent of Prison,
Central Prison I, Puzhal,
Chennai - 600 066.
2.The Inspector of Police,
T-9, Pattabiram Police Station,
Chennai. .. Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India praying to issue a Writ of Habeas Corpus directing the first respondent
to produce the body and person of the petitioner's husband Devaraj
s/o.Madhavan before this Court and set him at liberty to secure the ends of
justice and the detenu now confined in Central Prison-I, Puzhal.
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https://www.mhc.tn.gov.in/judis
Order dated : 05.09.2022
H.C.P.No.1669 of 2022
For Petitioner : Mr.D.Mario Johnson
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
*****
ORDER
[Made by P.N.PRAKASH, J] This petition has been filed seeking a direction to the first respondent to produce the petitioner's husband Devaraj s/o.Madhavan before this Court and set him at liberty, who is now confined in Central Prison-I, Puzhal.
2. A very interesting issue has been raised in this petition, to determine which, some minimum facts have to be stated:
2.1. The petitioner was arrested by the Inspector of Police, T-9 Pattabiram Police Station, in Crime No.160 of 2016 registered for the offences u/s.8(c) r/w 20(b)(ii)(B) of NDPS Act for possession of around 1¼ kgs. of Ganja on 18.03.2016 and was produced before the jurisdictional Court, which remanded him to judicial custody on the same day. Thereafter, the petitioner was granted bail. He faced a prosecution in C.C.No.59 of 2016 2/12 https://www.mhc.tn.gov.in/judis Order dated : 05.09.2022 H.C.P.No.1669 of 2022 in the Special Court for NDPS Act cases, Chennai, in which, he was convicted and sentenced on 04.06.2018 for the offence u/s.8(c) r/w 20(b)(ii)(B) of NDPS Act as follows:
"5 years rigorous imprisonment and fine of Rs.50,000/- in default to undergo one year rigorous imprisonment".
2.2. Challenging the conviction and sentence, the petitioner filed Crl.A.No.430/2018, but, suspension of sentence and bail was not granted to him and he continued to be in jail while the appeal was pending. Ultimately, this Court in Crl.A.No.430 of 2018 dated 17.06.2022, confirmed the conviction, but reduced the sentence of imprisonment from 5 years rigorous imprisonment to 4 years rigorous imprisonment and also reduced the sentence of fine from Rs.50,000/- in default to undergo two years rigorous imprisonment to Rs.25,000/- in default to undergo 3 months rigorous imprisonment. Admittedly, the petitioner did not pay the fine amount. Alleging that the continued detention of the petitioner is illegal, the present petition has been filed.
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3. The Superintendent, Central Prison, Puzhal, has filed a counter affidavit dated 05.09.2022 refuting the aforesaid submission.
4. Mr.D.Mario Johnson, learned counsel appearing for the petitioner, submitted that the petitioner was entitled to a set off of 221 days u/s.428 Cr.P.C., viz., the period that he had undergone as a remand prisoner in this case. One can have no quarrel with the above submission.
5. It is his further submission that by the time this Court had delivered its final judgment in Crl.A.No.430 of 2018 on 17.06.2022, the petitioner had already undergone 4 years 7 months and 19 days including 221 days as remand prisoner. It is the case of the petitioner that the substantive period of imprisonment, which has been reduced from 5 years rigorous imprisonment to 4 years rigorous imprisonment should also include the default imprisonment for non-payment of fine. In other words, learned counsel contended that, as on 17.06.2022 when this Court, in Crl.A.No.430 of 2018, had reduced the substantive sentence of 5 years rigorous imprisonment to 4 years rigorous 4/12 https://www.mhc.tn.gov.in/judis Order dated : 05.09.2022 H.C.P.No.1669 of 2022 imprisonment, the petitioner having undergone 4 years 7 months and 19 days, the default sentence of 3 months would also get submerged into the substantive sentence and therefore, the further detention of the petitioner in the prison is illegal. In support of his contention, learned counsel placed strong reliance on the following observations of the Supreme Court in the case in Shahejadkhan Mahebubkhan Pathan v. State of Gujarat [2013 (1) SCC 570] :
"15. For the reasons stated above, both the appeals are partly allowed. The conviction recorded is confirmed and sentence imposed upon the appellants to undergo RI for 15 years is modified to 10 years. The order of payment of fine of Rs.1.5 lakhs each is also upheld but the order that in default of payment of fine, the appellants shall undergo RI for 3 years is reduced to RI for 6 months. Since the appellants have already served nearly 12 years in jail, we are of the view that as per the modified period of sentence in respect of default in payment of fine, there is no need for them to continue in prison. The appellants shall be set at liberty forthwith unless they are required in any other offence. It is further made clear that for any reasons, if the appellants have not completed the modified period of sentence, they will be released after the period indicated hereinabove is over."
6. At the first blush, this argument of learned counsel appearing for the petitioner did appear logical, but, unfortunately, law is not always logical. The Superintendent of Central Prison, in the counter affidavit, has placed strong 5/12 https://www.mhc.tn.gov.in/judis Order dated : 05.09.2022 H.C.P.No.1669 of 2022 reliance on Rule 242 of the Tamil Nadu Prison Rules, 1983, which reads as under:
“242. Calculation of sentence of imprisonment in default of payment of fine. - Sentences awarded in default of payment of fine shall be calculated as follows:-
(1) Sentences imposed in default of payment of fines cannot run concurrently.
(2) If a prisoner sentenced to imprisonment in default of payment of fine receives another sentence while undergoing such imprisonment, the second sentence shall begin from the date on which the first sentence expires or if the fine is paid, from the date of payment.
Illustration. - A prisoner is sentenced on the 31st January to a fine of Rs.30 or in default to two months' rigorous imprisonment and on the 12th February of the same year he is sentence on another account to an additional imprisonment for four months. The fine is paid in full on the 28th February. The sentence for four months should begin from the 28th February, and not from the 31st January.
(3) If a prisoner sentenced to a term of imprisonment in default of payment of fine is also either at the same time or subsequently sentenced to another term or to other terms of imprisonment, imprisonment in default of payment of fine shall be kept in abeyance till the expiration of all the absolute sentences of imprisonment and shall be annulled wholly or partially by the payment of the fine in whole or in part, before that period or so long as imprisonment continues.
Explanation.- This rule covers the case of a prisoner whose first sentence of imprisonment is only in default of payment of 6/12 https://www.mhc.tn.gov.in/judis Order dated : 05.09.2022 H.C.P.No.1669 of 2022 fine. The substantive sentences of imprisonment subsequently passed shall count from the date of the first sentence and the imprisonment in default of payment of fine shall take effect last, although a portion of it may have been already served when the substantive sentence were awarded, unless the imprisonment is of a different denomination to that of the substantive sentences, in which case the imprisonment in default of payment of fine shall be completed before the substantive sentences shall take effect.
(4) The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.
(5) If a prisoner be sentenced to imprisonment of which the whole or any portion is in default of the payment of any fine and if the fine or a portion of it be not immediately paid, the dates of release shall be calculated and entered on the prisoner's warrant and History Ticket and in the Registers so as to correspond both with payment and with non-payment of fine.
(6) If a prisoner who is sentenced to a fine and in default to imprisonment, pays any portion of the fine, the date of release shall be proportionally altered. If the imprisonment in default of payment of fine is expressed in calendar months, and reduction of imprisonment to be made in consequence of such payment shall be calculated in calendar months and not in days. Any fraction of a month obtained by such calculation shall be reduced to days. When the fraction thus obtained is not exactly equal to any number of days or is less than a single day, the portion of a day which results shall be considered and treated as being equal to a full day.
Illustration. - A prisoner is sentenced on 1st January to a fine of Rs.300 or in default to six months' imprisonment. No part of the fine is realised except a sum of 75 paise. He shall be released on the 29th June, though the amount realised is less than the full amount due for a single day.
(7) When a prisoner is sentenced to fine and the fine is paid in 7/12 https://www.mhc.tn.gov.in/judis Order dated : 05.09.2022 H.C.P.No.1669 of 2022 instalments, the period of sentence to be remitted shall not be calculated on the individual payments, but on the aggregate of the several previous payments.
Illustration.- If a prisoner be sentenced on 1st January to six months' imprisonment and to a fine of Rs.300 and it be ordered that if the fine be not paid he be imprisoned for a further period of six months, then, supposing the prison immediately on conviction pay Rs.100 the date of release shall be first fixed at 31st October (namely, six months plus four months the equivalent of the fine unpaid) or if he afterwards pays another Rs.100 the date will be changed to 31st August and on his paying the whole to 30th June.
(8) If a prisoner who is sentenced to a fine and in default imprisonment for a certain number of years, months and days, pays a part of his fine the remission for the payment shall be calculated in year, months and not in days, and any fraction of a month, obtained by such calculation shall be reduced to days. When the fraction thus obtained is not exactly equal to any number of days, or is less than a single day, the portion of a day which results shall be considered and treated as being equal to a full day, in favour of the prisoner.”
7. At this juncture, it may be pertinent to state here that u/s.421 Cr.P.C., even if a person undergoes the default sentence in lieu of payment of fine, the liability to recover the fine amount will not get extinguished ipso facto.
8. The proviso to Section 421(1) Cr.P.C. reads as follows:
8/12https://www.mhc.tn.gov.in/judis Order dated : 05.09.2022 H.C.P.No.1669 of 2022 "Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. "
9. A reading of the above shows that the trial Court for special reasons to be recorded in writing can still issue a warrant for the recovery of the fine amount even if the prisoner had undergone the default sentence. In this background, if we analyse Rule 242 of the Tamil Nadu Prison Rules, 1983 (extracted supra), we find that the law casts a duty upon the prison authorities to calculate the substantive imprisonment and the imprisonment for default in payment of fine as two distinct and different streams. The question of calculating the default sentence would be done by the prison authorities only after the prisoner undergoes the substantive term of imprisonment and not before that. There is no provision for merging the substantive period of imprisonment with the imprisonment for default in payment of fine.
10. In this case, the High Court reduced the substantive imprisonment from 5 years rigorous imprisonment to 4 years rigorous imprisonment. The High Court also reduced the fine amount and the default imprisonment to 9/12 https://www.mhc.tn.gov.in/judis Order dated : 05.09.2022 H.C.P.No.1669 of 2022 Rs.25,000/- and 3 months rigorous imprisonment. Thus, from a reading of Rule 242 of the Tamil Nadu Prison Rules, 1983, it is limpid that the default imprisonment for non-payment of Rs.25,000/- fine can be calculated by the prison authorities only from the date when the substantive imprisonment gets over.
11. In this case, by judgment dated 17.06.2022, the High Court reduced the substantive sentence of 5 years rigorous imprisonment to 4 years rigorous imprisonment. Just because the prisoner had undergone some extra period of substantive imprisonment extending beyond 4 years, that period cannot be adjusted in the imprisonment for default in payment of fine.
12. In the case relied upon by the learned counsel for the petitioner, we find that there is absolutely no discussion on the provisions relating to prison rules therein relating to substantive and default sentence. That case arose from Gujarat State and we are not aware as to whether provisions like Rule 10/12 https://www.mhc.tn.gov.in/judis Order dated : 05.09.2022 H.C.P.No.1669 of 2022 242 of the Tamil Nadu Prison Rules, 1983, are available in Gujarat also.
Thus, in the absence of challenge to Rule 242 of the Tamil Nadu Prison Rules, 1983, we cannot merge the default sentence with the substantive sentence. Hence, this petition is devoid of merits.
13. Accordingly, this Habeas Corpus Petition is dismissed.
We place on record our appreciation to Mr.D.Mario Johnson, learned counsel, for the arguments advanced by him.
[P.N.P., J] [R.H., J]
05.09.2022
Index: Yes/No
gm
P.N.PRAKASH, J
and
R.HEMALATHA, J
gm
To
1.The Superintendent of Prison,
Central Prison I, Puzhal,
11/12
https://www.mhc.tn.gov.in/judis
Order dated : 05.09.2022
H.C.P.No.1669 of 2022
Chennai - 600 066.
2.The Inspector of Police,
T-9, Pattabiram Police Station,
Chennai.
3.The Public Prosecutor,
High Court, Madras.
H.C.P.No.1669 of 2022
05.09.2022
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