IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 09.03.2017 CORAM THE HON'BLE MR.JUSTICE S.NAGAMUTHU AND THE HON'BLE DR.JUSTICE ANITA SUMANTH Habeas Corpus Petition Nos.386 to 388 of 2017 Subbaiah Mani .. Petitioner in all H.C.Ps vs
1. The Superintendent, Central Prison, Puzhal – 1, Chennai – 600 066.
2. The Secretary to the Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai – 600 009. .. Respondents in all H.C.Ps Prayer in H.C.P.No.386/2017:- This Habeas Corpus Petition has been filed under Article 226 of the Constitution of India seeking a direction to the first respondent to produce the detenu, Muralitharan son of Thamothiram Pillai presently detained at the Central Prison, Puzhal – 1, as a convict by a judgment dated 02.02.2017 in C.C.No.904 of 2015 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai before this Court and set him at liberty.
Prayer in H.C.P.No.387/2017:- This Habeas Corpus Petition has been filed under Article 226 of the Constitution of India seeking a direction to the first respondent to produce the detenu, Suganathan son of Kulasekaram Pillai presently detained at the Central Prison, Puzhal – 1, as a convict by a judgment dated 02.02.2017 in C.C.No.904 of 2015 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai before this Court and set him at liberty.
Prayer in H.C.P.No.388/2017:- This Habeas Corpus Petition has been filed under Article 226 of the Constitution of India seeking a direction to the first respondent to produce the detenu, Prakash son of Indralingam presently detained at the Central Prison, Puzhal – 1, as a convict by a judgment dated 02.02.2017 in C.C.No.904 of 2015 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai before this Court and set him at liberty.
For Petitioner in all H.C.Ps : Mr.A.M.Rahamath Ali For Respondents in All H.C.Ps : Mr.V.M.R.Rajentren, Additional Public Prosecutor COMMON ORDER These three Habeas Corpus Petitions have been filed seeking a direction to the respondents to give setoff the period spent by the convicts/detenus, in a Special Camp in pursuance of the orders made by the Executive Magistrate under Section 3(2)(e) of the Foreigners Act, 1946 (hereinafter referred to as "the Act") and to release the detenus as provided in Section 428 Cr.P.C.
2. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
3. In all these cases, the detenus were convicted by the learned XI Metropolitan Magistrate, Saidapet, Chennai in C.C.No.904 of 2015 for offences under Sections 120(B), 465 r/w 511 and 467 r/w 474 I.P.C. The maximum sentence of imprisonment imposed on them is two years. The sentences have been ordered to run concurrently. In pursuance of the said conviction and sentence imposed by the trial Court, now the detenus have been lodged in the Central Prison, Puzhal, Chennai. The petitioner in all the three petitions are the common friend of the detenus.
4. The learned counsel for the petitioner contended in all these petitions that the detenus were originally arrested in connection with the above stated cases and later on released on bail.
5. The learned counsel further stated that in pursuance of the order passed by the Government in G.O.No.SR.III/1151-5/2013 Public (SC) Department dated 13.06.2013 under Section 3(2)(2) of the Act, the detenus were kept in the Special Camp at Chengalpet, Chennai between 02.08.2013 and 08.02.2014. Now, according to the petitioners, the said period spent in the Special Camp spent between 02.08.2013 and 08.02.2014 should be given setoff as provided in Section 428 Cr.P.C.
6. The learned counsel for the petitioner has relied on the judgment of a Division Bench of this Court in H.C.P.Nos.1027 & 1028 of 1995 dated 21.12.1995 (Jayakumar @ Jeeva v. The State of Tamil Nadu). In the said case, under similar circumstances, the Division Bench of this Court has directed the Jail Authorities to count the period spent on by the petitioners therein in the Special Camp, in pursuance of the order made under Section 3(2)(e) of the Foreigners Act, be counted as setoff as provided in Section 428 Cr.P.C.
7. We had our own doubt about the said conclusion arrived at by the Division Bench of this Court. A plain reading of Section 428 Cr.P.C., would make it ipso facto clear that the period of detention, if any, undergone by the detenu during investigation, inquiry or trial of the same case before the date of such conviction, shall be given setoff. In our considered view, such detention order during the investigation, inquiry or trial should have been made by the jurisdictional Court in connection with the same case, in which, the detenu was ultimately convicted. But, in the instant case, after the detenus were released on bail by the jurisdictional Court, the Authority under the Foreigners Act, passed an order under Section 3(2)(e) of the Act, keeping them in a Special Camp in order to prevent them from leaving India. This period can never be treated as a detention period, as provided in Section 428 Cr.P.C.
8. When we expressed this view, the learned counsel for the petitioner brought to our notice a judgment of a Full Bench Judgement of this Court, on the same issue. In Sree Latha v. Secretary to Government (2007(2) MLJ 1320), after having considered the previous judgments, the Full Bench took the view that the said period spent in the Special Camp by the detenus in pursuance of the order made under Section 3(2)(e) of the Act, cannot be treated as the detention period for the purpose of Section 428 Cr.P.C.
9. The same view has been taken by the Hon'ble Supreme Court in Champalal v. State of Maharashtra (AIR 1982 SC 790). In view of the law declared by the Full Bench as well as the Hon'ble Supreme Court, the plea of the petitioner that the period spent by the detenus in Special Camp, in pursuance of the orders made under Section 3(2)(e) of the Act, should be counted as the detention period for the purpose of Section 428 Cr.P.C., cannot be countenanced and rejected. We hold that the siad period spent in the Special Camp is not the detention period in connection with the same case and therefore, the same cannot be counted for the purpoose of Section 428 Cr.P.C. Thus, we do not find any merit in these Habeas Corpus Petitions.
10. In the result, the Habeas Corpus Petitions fail and accordingly, the same are dismissed.
jbm Index: Yes/No (S.N.J.,) (A.S.M.J.,) 09.03.2017 S.NAGAMUTHU.J., AND ANITA SUMANTH.J., jbm H.C.P.Nos.386 to 388 of 2017 09.03.2017 http://www.judis.nic.in