Madras High Court
Thara vs The Superintendent Of Prison on 5 September, 2022
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.
1/12
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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
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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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H.C.P.No.1669 of 2022
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
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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
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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
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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
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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:
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"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
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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
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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,
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
https://www.mhc.tn.gov.in/judis
