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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
CIVIL WRIT No. 8714 of 2008
SMT. SUKHMINDER KAUR
V/S
STATE & ORS.
Date of Judgment : 09th April, 2009
PRESENT
HON'BLE SHRI N P GUPTA,J.
HON'BLE SHRI C.M.TOTLA,J.
Mr. CHAITANYA GAHLOT, for the appellant / petitioner
Mr. BK MEHAR, G.A. for the State Respondent.
BY THE COURT : (PER HON'BLE GUPTA,J.)
This petition for issuance of direction, in
the nature of habeas corpus, has been filed by the
petitioner, whose husband is undergoing sentence.
The facts of the case are, that petitioner’s
husband, hereafter referred to as ‘the accused’, was
convicted by the Court of Addl. Sessions Judge No.1.,
Sri Ganganagar by judgment dt. 15.10.2004, in Sessions
Case No. 37/93, for the offences under Sections 8/21
and 8/23 of the Narcotic Drugs and Psychotropic
Substances Act, 1985, and sentenced to 20 years
rigorous imprisonment and a fine of Rs. 2 lakh, in
default to undergo one year’s rigorous imprisonment
for the offence under Section 8/21, and with rigorous
imprisonment for another term of 20 years with a fine
of Rs. 2 lakh, in default to undergo one year’s
rigorous imprisonment for the offence under Section
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8/23. This judgment was challenged by the accused by
way of S.B. Criminal Appeal No. 1111/2004, before this
Court, which was decided vide judgment dt. 23.7.2008,
and thereby the substantive sentences for both the
offences were reduced to 10 years on each of the
counts. However, the sentences of fine, and the
sentences of rigorous imprisonment in default of
payment of fine were maintained. Admittedly these
convictions and sentences have become final.
The case of the petitioner then is, that as
on the date of the filing of the petition, he has
undergone about 11 years and one month judicial
custody, and that since all the sentences were ordered
to run concurrently, and since the substantive
sentences ran concurrently, after completion of the
period of 10 years, the substantive sentences came to
an end. With this it is contended, that the accused
has completed further one year’s rigorous imprisonment
also in default of payment of fine, and since all the
sentences were made to run concurrently, the accused
was entitled to be set at liberty after completion of
said one year’s rigorous imprisonment in default of
payment of fine, but he has not been released. Thus,
his detention is illegal. The case of the petitioner
further is, that he has orally been given out, that as
he has been awarded one year’s rigorous imprisonment
in default of payment of fine for two offences, those
sentences of imprisonment he has to suffer one after
another, while according to the petitioner, since
there was only one warrant, and the sentences were
ordered to run concurrently, the stand of the jail
authority is violative of Article 14, 19 and 21 of the
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Constitution.
It is in the next place contended, that the
sentences of imprisonment to be suffered, in default
of payment of fine stands on different footing, than
the sentences of imprisonment, substantively imposed,
inasmuch as the sentence of imprisonment in default of
payment of fine is only imprisonment, and is not a
sentence as such, but it is a penalty which the person
incurs, on account of non payment of fine, as the
sentence is something which the offender must undergo
unless it is set aside, or remitted in part, or in
whole, either in appeal, or in revision, or in other
judicial proceedings, or otherwise, while imprisonment
in default of payment of fine is required to be
undergone, either because he is unable to pay the
amount, or refuses to pay such fine, and he can always
avoid imprisonment by paying such amount. By raising
this submission it is sought to be contended, that the
rigour of Section 32A of the N.D.P.S. Act, prohibiting
admissibility of remission to the accused, convicted
under the said Act, is not attracted, as that
prohibition is attracted only with regard to
substantive sentences, and if considered on those
parameters, with respect to period of imprisonment
suffered in default of payment of fine, the accused
earns remission, which is about 4 months a year, and
that is also required to be accounted for, for
computing the period of imprisonment to be undergone
in default of payment of fine.
The next submission made is that since the
accused was imposed rigorous imprisonment, and
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accordingly he had to work in jail factory, and he did
work, for which he is required to be paid, and the
amount payable to him for the work so done, for the
period of 11 years of his custody, is liable to be
adjusted against the fine, which he is liable to pay,
and proportionately the period of imprisonment is
required to be reduced.
Next submission made is, that the jail
authorities are paying only Rs. 9/- per day, on the
ground, that the amount of diet and clothing etc. are
deducted from the wages earned, but looking to the
cost of diet and cloth, borne by the respondent, if
deducted from the scale of minimum wages, payment of
Rs. 9/- per day is wholly illegal, and has prayed for
direction to calculate the amount of wages, after
deduction of appropriate cost of diet and clothing
etc. from the scale of minimum wages, at present, and
to adjust the amount so arrived at, against the amount
of fine, and to compute the period of imprisonment to
be undergone by him, and to release him accordingly.
A reply to the writ petition has been filed
annexing the photostat copy of the judgment of this
Court. From a look thereat, we find, that the
substantive sentence of imprisonment, awarded to the
accused for both the offences are reduced to
imprisonment to the period of 10 years on each count.
However, the sentence of fine as imposed, and
imprisonment to be undergone in default of payment of
fine, as ordered by the learned trial court, was
maintained, and only substantive sentences were
ordered to run concurrently, and it was further
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expressly mentioned, that after serving out the
rigorous imprisonment for 10 years, the period of
sentence of imprisonment in default of payment of fine
shall be counted separately. Further reply to the writ
petition has been filed wherein the fact of
conviction, and imposition of sentence were not
disputed, and it was pleaded that the petitioner was
required to undergo one year’s rigorous imprisonment
in default of payment of fine of Rs. 2 lakh, and
another period of one year’s rigorous imprisonment in
default of payment of fine of Rs. 2 lakh for the two
offences as above, and has to serve both the sentences
separately, and independently. It is contended that
since the sentence of imprisonment to be suffered in
default of payment of fine have not been made to run
concurrently the accused has to undergo two years
rigorous imprisonment. It was pleaded that even as per
the provisions of Cr.P.C., the sentence of
imprisonment in default of payment of fine is
independent of sentence of imprisonment, and has to be
served separately having failed to pay the fine for
each of the sentences. It was also pleaded that the
bar of Section 32-A is very much attracted even
against earning remission where the accused is
undergoing sentence of imprisonment in default of
payment of fine as that too is very much a part of the
sentence within the meaning of Section 32-A. Thus, it
was contended that the accused is not in illegal
custody.
Then, an additional reply has further been
filed on 6.3.2009, pleading interalia, that the
payment of wages, for doing the work by the prisoner,
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is matter which is governed by the circular dt.
1.11.2000. In the circular, the amount to be paid to
skilled and unskilled prisoners, are prescribed.
According to which, the prisoners of the category of
the present accused is to be paid the wages at the
rate of Rs. 9/- per day. Then it is pleaded, that the
convict has worked in jail from 30.7.2005 to 5.3.2009,
from out of which he was on interim bail for a period
of 3 months and 2 days, and therefore, he has earned
the wages to the tune of Rs. 10,800/- only, for doing
the work in jail. Some calculations have also been
given about the balance of fine to be remaining due,
for which he has to suffer imprisonment. It has been
prayed that the petition be dismissed.
Arguing the writ petition learned counsel for
the petitioner submits, that there is no provision
under the Criminal Procedure Code or Indian Penal
Code, making provision about the sentence of
imprisonment to be suffered in default of sentence of
payment of fine, requiring to be run concurrently, or
consecutively, and therefore, on general principles,
they are required to be held to run concurrently.
Then, about the nature of sentence of imprisonment, to
be suffered in default of payment of fine, learned
counsel relied upon judgment of Hon’ble the Supreme
Court in Shantilal Vs. State of M.P., reported in 2008
Cri.L.J.-386. Then it was contended, that according to
Prisons Rules, 1951 Section-III, the prisoner is
entitled to remission, and in view of the spirit of
the nature of imprisonment to be suffered in default
of sentence of payment of fine, it was contended, that
bar of Section 32A should be held to be not attracted.
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Then, the submission about adjustment of the wages
earned by accused, by working in jail, in payment of
sentence of fine, was pressed into service. Reliance
was also placed on the judgment of this Court in D.B.
Civil Writ Petition No. 6462/2007 Rishipal Vs. State
of Rajasthan, decided on 13.3.2008, to contend, that
the period of parole should be considered period
served out as a sentence. Reliance was also placed on
another judgment of the Hon’ble Supreme Court, in Dadu
@ Tulsidas Vs. State of Maharashtra, reported in 2000
Cr.L.J.-4619, to contend, that therein substantial
part of the provisions of Section 32A have been struck
down as ultra vires the Constitution. Since during
course of arguments, an objection was raised on the
side of the respondent, about maintainability of the
habeas corpus petition, reliance was placed on the
judgment of the Hon’ble Supreme Court in Deepak Bajaj
Vs. State of Maharashtra, reported in 2008 AIR-SCW-
7788, to contend, that even in such circumstances the
habeas corpus petition would be maintainable.
Learned Public Prosecutor on the other hand
submitted, that by this petition, the petitioner
indirectly seeks to have the judgment of conviction
and sentence reviewed, by praying for making the two
sentences of imprisonment in default of payment of
fine to run concurrently, which cannot be done in
habeas corpus jurisdiction. Regarding Shantilal’s case
it was contended, that that judgment was rendered in
regular appeal, while in the present case the
conviction and sentence of imprisonment has already
become final. Then it was contended, that so far
Section 32-A is concerned, this part of the provision,
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prohibiting admissibility of remission, has clearly
been upheld by the Hon’ble Supreme Court. Then,
regarding wages it was submitted, that the rate of
wages has been prescribed by the circular Annexure
R/2, which has not been assailed by the petitioner,
and so far as the matter of actual working days of the
prisoner is concerned, that is a matter of accounting,
for which the accused can always make representation,
which will be decided in accordance with law, which
right of the prisoner is recognised under Article 161
of the Constitution, but then on that count habeas
corpus petition cannot be maintained. Thus it was
prayed, that the petition be dismissed.
We have heard learned counsel and have
considered the relevant legal provisions, and the case
law cited by the learned counsel for the petitioner.
We may at this place refer to provisions of
Section 64 of the Indian Penal Code, which clearly
provides, that in every case of an offence, punishable
with imprisonment as well as fine, in which the
offender is sentenced to a fine, whether with or
without imprisonment, and in every case of an offence
punishable with imprisonment or fine, or with fine
only, in which the offender is sentenced to a fine, it
shall be competent to the Court, which sentences such
offender, to direct by the sentence, that in default
of payment of the fine, the offender shall suffer
imprisonment for a certain term, which imprisonment
shall be in excess of any other imprisonment to which
he may have been sentenced, or to which he may be
liable under a commutation of a sentence. Thus, by
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virtue of the provisions of Section 64, it is
competent for Court to direct, that the sentence in
default of payment of fine, shall be undergone in
addition to the substantive imprisonment, imposed for
the offences concerned. Then, we come to the
provisions of Section 427 Cr.P.C., which read as
under:-
“427. Sentence on offender already sentenced for
another offence.-(1) When a person already
undergoing a sentence of imprisonment is sentenced
on a subsequent conviction to imprisonment or
imprisonment for life, such imprisonment or
imprisonment for life shall commence at the
expiration of the imprisonment to which he has
been previously sentenced, unless the Court
directs that the subsequent sentence shall run
concurrently with such previous sentence.Provided that where a person who has been
sentenced to imprisonment by an order under
Section 122 in default of furnishing security is,
whilst undergoing such sentence, sentenced to
imprisonment for an offence committed prior to the
making of such order, the latter sentence shall
commence immediately.(2) When a person already undergoing a sentence of
imprisonment for life is sentenced on a subsequent
conviction to imprisonment for a term or
imprisonment for life, the subsequent sentence
shall run concurrently with such previous
sentence.”Thus, per force sub-section (1) the sentences
are to run consecutively, i.e. one after another,
unless the Court directs, that subsequent sentence
shall run concurrently with such previous sentence.
However, according to sub-section (2), when a person
is already undergoing sentence of imprisonment for
life, even when is subsequently convicted and
sentenced to imprisonment for life, the subsequent
sentence is to run concurrently with previous
10sentence. Thus, the contention based on general
principles does not stand good, inasmuch as the
general principle is contained in Section 427(1), and
thus according to general principle the sentences are
to run consecutively, unless the Court otherwise
directs. Accordingly, on the general principles, the
sentence of imprisonment to be suffered in default of
payment of fine is also required to be run
consecutively, unless the Court otherwise directs.
Obviously there is no provision of law, brought to our
notice, by either side, that in absence of any such
specification, the sentence of imprisonment to be
suffered in default of payment of fine, for different
offences, is to run concurrently. Obviously, neither
the learned trial court, nor this Court, while
deciding the appeal, directed the period of
imprisonment to be suffered, in default of payment or
fine, to run concurrently, and therefore, in our view
it would not be open for us, exercising habeas corpus
jurisdiction, to hold, that they should run
concurrently, or to direct, that they should run
concurrently. Resultantly the period of imprisonment
to be suffered in default of payment of fine imposed
under the two offences is to run consecutively.
Then, we take up the contention based on the
period of parole. As an abstract legal proposition,
Rishipal’s judgment apart, even Hon’ble the Supreme
Court in Dadu’s case has clearly held in para-6, where
it was dealing with the case under the N.D.P.S. Act
itself, as under:-
“6. Parole is not a suspension of the sentence.
11The convict continues to be serving the sentence
despite granting of parole under the Statute,
Rules, Jail Manual or the Government Orders,
“Parole” means the release of a prisoner
temporarily for a special purpose before the
expiry of a sentence, on the promise of good
behaviour and return to jail. It is a release from
jail, prison or other internment after actually
been in jail serving part of sentence.”Therefore, on this aspect there is no
controversy. The question remains, as to how it is
applicable in the present case. It is nowhere the
allegation, that after serving out the substantive
sentences for the two offences, the accused ever
enjoyed any parole, while suffering imprisonment,
required to be undergone in default of payment of
fine, nor is it shown, that the respondents are
treating any period of time, which may have been
enjoyed by the accused as parole, as a period not
undergone as imprisonment in default of payment of
fine. Therefore, this only remains an academic
submission.
Then, we take up the question of
admissibility of remission. A Division Bench of this
Court in Santosh Vs. Union of India, reported in 1998
Cri.L.J. -612, had dealt with the aspect of
admissibility of remission in cases of persons
convicted under the N.D.P.S. Act, as the vires of
provisions of Section 32-A were challenged, and the
provision was held to be constitutionally valid, and
this part of the provision has been upheld by the
Hon’ble Supreme Court also in Dadu’s case. Therefore,
we have to proceed on the basis, that this part of
Section 32-A, where it bars the admissibility of
remission, is a valid legislation.
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The question then is, as to whether the bar
is attracted only qua the substantive sentence of
imprisonment, or imprisonment to be suffered in
default of payment of fine as well. We may straight-
way quote the provisions of Section 32-A of the
N.D.P.S. Act, which reads as under:-
“32-A. No suspension, remission or commutation in
any sentence awarded under this Act:-Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974) or any other
law for the time being in force but subject to the
provisions of Section 33, no sentence awarded
under this Act (other than Section 27) shall be
suspended or remitted or commuted.”A look at the above provision shows, that
except the sentences awarded for offence under Section
33, no sentence awarded under the Act, can be
suspended, or remitted, or commuted. Reverting to
Section 64 IPC, that makes it clear, that sentence of
fine is also very much a sentence. It is very much a
part of the punishment, imposable under the relevant
provisions of the relevant Act, for the offence found
to have been committed by the accused, and in the
present case, the sentences of fine have been imposed
for the two offences, found to have been committed,
being Section 8/21 and 8/23 of the N.D.P.S. Act. Thus,
the sentences of fine, do very much constitute
“sentence awarded under this Act” within the meaning
of Section 32-A of the N.D.P.S. Act, and in
Dadu’s case, the Hon’ble Supreme Court, in para-15 has
clearly upheld, this part of the provision of Section
32-A, by holding as under:-
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“15…..There is, therefore, no vice of
unconstitutionality in the section in so far as it
takes away the powers of the Executive conferred
upon it under Ss. 432 and 433 of the code, to
suspend, remit or commute the sentence of a
convict under the Act.”
On the face of this legal position, in our
view, the accused cannot claim to have earned any
remission, on account of his having served
imprisonment, in default of payment of fine either.
There is no dispute in the legal proposition,
as propounded in Shantilal’s case, by the Hon’ble
Supreme Court, that the imprisonment to be suffered on
account of default of payment of fine is only mode of
recovery, and it is to be proportionate. In this
regard it is not the case of the petitioner, that he
has made any payment of fine as such, and the only
contentions raised are, firstly, that the amount of
wages earned by him for the work done in the jail
factory is required to be adjusted in payment of fine,
and the period of imprisonment to be undergone is
required to be proportionately reduced, and the second
contention raised is, about the rate of wages, which
should be paid to the accused, for the work done,
thirdly there appears some dispute also, about the
period of, or number of days, for which the accused
has worked in the factory.
Out of the above three contentions, so far
the first one is concerned, we find force therein,
that the amount of wages earned by the accused, by
working in jail factory, and which is payable to the
accused, is required to be adjusted by way of payment
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of fine, and the period of imprisonment to be
undergone by him in default of payment of fine, is
required to be proportionately reduced. In our view,
the respondents also can have no legal or justifiable
objection to this proposition.
So far as the second aspect is concerned, the
matter of rate of wages to be paid, is a matter
governed by the circular dt. 1.11.2000 Annexure R/2,
which has been issued by the State Government, and
parameters have also been laid down, as to who shall
be taken to be skilled, and who is to be taken to be
unskilled, and it has been prescribed that the nature
of work shall be assigned accordingly. According to
this circular the skilled shall work in the jail
factory, and unskilled prisoner should work in jail
maintenance, wherein prisoners are kept. This circular
obviously is not under challenge before us. That apart
the question as to how this rate is to be arrived at,
involves various factors to be taken into account, and
for that, obviously uniform parameters were, and are,
required to be laid down, and making any interference
therein, would require a detailed investigation into
bundle of disputed questions of fact, which obviously
is not within the scope of our jurisdiction, while
exercising habeas corpus jurisdiction. Therefore, in
the present case, as appears from the history ticket
of the accused prisoner, as was requisitioned by us
from the learned Public Prosecutor, it is clear, that
the accused was deputed to work in the maintenance,
obviously being unskilled labour. It is a different
story, that we also find an order in the history
ticket, that the prisoner shall work in the factory.
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Therefore, in our view, for whatever period
he has worked, the wages earned by him are required to
be computed, in accordance with the circular Annexure
R/2.
Then, the question is as to for what period
of time he has worked. In the petition it has been
claimed, that he had worked for all the time he
remained in jail, while from the said history ticket,
it transpires that the prisoner had enjoyed one parole
of 12 days, and had got temporary suspension of
sentence, as contra distinguished from parole also,
and it also transpires, that at times the accused had
voluntarily absented from work regularly also. In view
of the above, in our habeas corpus jurisdiction, we do
not stand advised to undertake this detailed exercise,
to go into all these disputed questions of fact, as to
on what particular date or dates the accused had
worked, or on what particular date or dates he
voluntarily absented, so also, as was attempted by the
learned counsel for the petitioner to contend, as to
what is the procedure prescribed for recording, that
the accused had absented from work. Therefore, we are
not inclined to go into this aspect of the matter.
We are not impressed with the contention of
the learned Public Prosecutor, that the accused should
make representation under Article 161 of the
Constitution, instead of approaching this Court in
habeas corpus jurisdiction. From bare reading of
Article 161 it is clear, that it confers power on His
Excellency to grant pardons, reprieves, respites, or
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remissions of punishment or to suspend, remit or
commute the sentence of any person, convicted of any
offence, against any law relating to a matter to which
the executive power of the State extends. As found
above, the power of the Executive, to suspend, remit,
or commute, stands abrogated by Section 32-A, and by
claiming the relief as claimed in this petition, about
computation of rate of wages, and calculation of the
days for which he has worked, does not fall within the
expression pardons, reprieves, respites or remission
of punishment. The accused claims only his right, and
not any mercy or indulgence.
In that view of the matter the jail
authorities are required to make calculations, and
computations, themselves. Obviously, if the accused
finds, that any error is committed in such calculation
or computation, as a result of which he happened to be
detained in custody, for period of time, beyond what
he was required to be detained according to the
accused, then obviously, he is free to take
appropriate legal action against the detaining
authority, for appropriate and adequate compensation.
Consequently, the present petition is
disposed of as under:-
(1) It is held that imprisonment, to be
suffered by the accused in default of payment of fine
imposed for the two offences, is to be suffered
consecutively, and not concurrently.
(2) The accused is not entitled to remission,
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for the period of imprisonment undergone by him in
default of payment of fine, imposed for the offence
under Section 8/21 and 8/23 of the N.D.P.S. Act.
(3) Period of parole enjoyed by the accused,
while undergoing imprisonment in default of payment of
fine, is required to be treated as a period of
imprisonment undergone.
(4) The wages, which the accused has earned,
for the work done in the jail, is required to be
computed in accordance with Circular Annexure R/2.
(5) The jail authorities are required to
calculate the actual number of days, on which the
prisoner has worked, by verifying it from the record,
and after giving reasonable opportunity of hearing to
the petitioner, and then to compute the wages for that
period, in accordance with Annexure R/2.
(6) The wages so earned by the accused person
are liable to be adjusted in the amount of fine
imposed on the accused, in default of payment whereof
he is undergoing imprisonment, and the period of
imprisonment, required to be undergone by him in
default of payment of fine, is required to be
proportionately reduced.
(7) The jail authorities are directed to
accordingly undertake the exercise, within a period of
four weeks from today, and then to release the
prisoner on completion of the sentence, by calculating
them as above.
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(8) If the accused finds, that any error is
committed in such calculation or computation, as a
result of which he happened to be detained in custody,
for period of time, beyond what he was required to be
detained according to the accused, then obviously, he
is free to take appropriate legal action against the
detaining authority, for appropriate and adequate
compensation.
( C.M.TOTLA ),J. ( N P GUPTA ),J. /Sushil/