Undertrial detention undergone in one case cannot be set-off in another case

Bombay High Court: While relying upon the Supreme Court decision in Atul Manubhai Parekh v. Central Bureau of Investigation, (2010) 1 SCC 603, the Division Bench of Ranjit More, Anuja Prabhudessai, JJ. has held that a convict is not entitled to get the period of undertrial detention suffered in one case for set-­off against the sentence to be undergone in another case.

The petitioner was sentenced to undergo ten years imprisonment for committing offences punishable under POTA. The period of under-trial detention undergone by him was set-off under Section 428 CrPC. The petitioner was also arrested for committing offences punishable under Maharashtra Control of Organised Crime Act, after he was released on bail in the POTA case. The petitioner, while placing reliance on the Supreme Court decision in State of Maharashtra v. Najakat Alia Mubarak Ali, (2001) 6 SCC 311, contended that the period for which he was under detention in MCOC case was also to be set off as against the imprisonment imposed on him in the POTA case.

The High Court noted that in  Najakat’s case the accused was arrested on the same day in two criminal cases and he remained under concurrent detention for both the cases. The facts of Najakat’s case were therefore distinguishable as the petitioner, in the instant case, was already released on bail in the POTA case when he was undergoing detention in the MCOC case. The Court observed that Section 428, in clear and unambiguous words, provides that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. Therefore, the period undergone by the petitioner in the MCOC case could not be set off as against the sentence imposed in the POTA case. [Saquib Abdul Hamid Nachan v. Superintendent, Central Jail, 2017 SCC OnLine Bom 738, decided on 05.05.2017]

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