{"id":121253,"date":"2009-04-09T00:00:00","date_gmt":"2009-04-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-sukhminder-kaur-vs-state-ors-on-9-april-2009"},"modified":"2017-07-01T14:30:25","modified_gmt":"2017-07-01T09:00:25","slug":"smt-sukhminder-kaur-vs-state-ors-on-9-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-sukhminder-kaur-vs-state-ors-on-9-april-2009","title":{"rendered":"Smt. Sukhminder Kaur vs State & Ors on 9 April, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Smt. Sukhminder Kaur vs State & Ors on 9 April, 2009<\/div>\n
                                                         1\n\n     IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN\n                        AT JODHPUR\n\n\n                     J U D G M E N T\n\n\n              CIVIL WRIT No. 8714 of 2008\n\n                   SMT. SUKHMINDER KAUR\n                            V\/S\n                       STATE & ORS.\n\nDate of Judgment           :         09th April, 2009\n\n\n                        PRESENT\n               HON'BLE SHRI N P GUPTA,J.\n               HON'BLE SHRI C.M.TOTLA,J.\n\n\nMr. CHAITANYA GAHLOT, for the appellant \/ petitioner\nMr. BK MEHAR, G.A. for the State Respondent.\n\n\nBY THE COURT : (PER HON'BLE GUPTA,J.)<\/pre>\n
         This petition for issuance of direction, in<\/p>\n
the nature of habeas corpus, has been filed by the<\/p>\n
petitioner, whose husband is undergoing sentence.<\/p>\n
         The facts of the case are, that petitioner’s<\/p>\n
husband, hereafter referred to as ‘the accused’, was<\/p>\n
convicted by the Court of Addl. Sessions Judge No.1.,<\/p>\n
Sri Ganganagar by judgment dt. 15.10.2004, in Sessions<\/p>\n
Case No. 37\/93, for the offences under Sections 8\/21<\/p>\n
and 8\/23 of the Narcotic Drugs and Psychotropic<\/p>\n
Substances Act, 1985, and sentenced to 20 years<\/p>\n
rigorous imprisonment and a fine of Rs. 2 lakh, in<\/p>\n
default to undergo one year’s rigorous imprisonment<\/p>\n
for the offence under Section 8\/21, and with rigorous<\/p>\n
imprisonment for another term of 20 years with a fine<\/p>\n
of Rs. 2 lakh, in default to undergo one year’s<\/p>\n
rigorous imprisonment for the offence under Section
\n                                                          2<\/span><\/p>\n
8\/23. This judgment was challenged by the accused by<\/p>\n
way of S.B. Criminal Appeal No. 1111\/2004, before this<\/p>\n
Court, which was decided vide judgment dt. 23.7.2008,<\/p>\n
and thereby the substantive sentences for both the<\/p>\n
offences were reduced to 10 years on each of the<\/p>\n
counts. However, the sentences of fine, and the<\/p>\n
sentences of rigorous imprisonment in default of<\/p>\n
payment of fine were maintained. Admittedly these<\/p>\n
convictions and sentences have become final.<\/p>\n
          The case of the petitioner then is, that as<\/p>\n
on the date of the filing of the petition, he has<\/p>\n
undergone about 11 years and one month judicial<\/p>\n
custody, and that since all the sentences were ordered<\/p>\n
to run concurrently, and since the substantive<\/p>\n
sentences ran concurrently, after completion of the<\/p>\n
period of 10 years, the substantive sentences came to<\/p>\n
an end. With this it is contended, that the accused<\/p>\n
has completed further one year’s rigorous imprisonment<\/p>\n
also in default of payment of fine, and since all the<\/p>\n
sentences were made to run concurrently, the accused<\/p>\n
was entitled to be set at liberty after completion of<\/p>\n
said one year’s rigorous imprisonment in default of<\/p>\n
payment of fine, but he has not been released. Thus,<\/p>\n
his detention is illegal. The case of the petitioner<\/p>\n
further is, that he has orally been given out, that as<\/p>\n
he has been awarded one year’s rigorous imprisonment<\/p>\n
in default of payment of fine for two offences, those<\/p>\n
sentences of imprisonment he has to suffer one after<\/p>\n
another, while according to the petitioner, since<\/p>\n
there was only one warrant, and the sentences were<\/p>\n
ordered to run concurrently, the stand of the jail<\/p>\n
authority is violative of Article 14, 19 and 21 of the
\n                                                          3<\/span><\/p>\n
Constitution.\n<\/p>\n<\/p>\n
         It is in the next place contended, that the<\/p>\n
sentences of imprisonment to be suffered, in default<\/p>\n
of payment of fine stands on different footing, than<\/p>\n
the sentences of imprisonment, substantively imposed,<\/p>\n
inasmuch as the sentence of imprisonment in default of<\/p>\n
payment of fine is only imprisonment, and is not a<\/p>\n
sentence as such, but it is a penalty which the person<\/p>\n
incurs, on account of non payment of fine, as the<\/p>\n
sentence is something which the offender must undergo<\/p>\n
unless it is set aside, or remitted in part, or in<\/p>\n
whole, either in appeal, or in revision, or in other<\/p>\n
judicial proceedings, or otherwise, while imprisonment<\/p>\n
in default of payment of fine is required to be<\/p>\n
undergone, either because he is unable to pay the<\/p>\n
amount, or refuses to pay such fine, and he can always<\/p>\n
avoid imprisonment by paying such amount. By raising<\/p>\n
this submission it is sought to be contended, that the<\/p>\n
rigour of Section 32A of the N.D.P.S. Act, prohibiting<\/p>\n
admissibility of remission to the accused, convicted<\/p>\n
under the said Act, is not attracted, as that<\/p>\n
prohibition is attracted only with regard to<\/p>\n
substantive sentences, and if considered on those<\/p>\n
parameters, with respect to period of imprisonment<\/p>\n
suffered in default of payment of fine, the accused<\/p>\n
earns remission, which is about 4 months a year, and<\/p>\n
that is also required to be accounted for, for<\/p>\n
computing the period of imprisonment to be undergone<\/p>\n
in default of payment of fine.\n<\/p>\n<\/p>\n
          The next submission made is that since the<\/p>\n
accused was imposed rigorous imprisonment, and
\n                                                          4<\/span><\/p>\n
accordingly he had to work in jail factory, and he did<\/p>\n
work, for which he is required to be paid, and the<\/p>\n
amount payable to him for the work so done, for the<\/p>\n
period of 11 years of his custody, is liable to be<\/p>\n
adjusted against the fine, which he is liable to pay,<\/p>\n
and proportionately the period of imprisonment is<\/p>\n
required to be reduced.\n<\/p>\n<\/p>\n
          Next submission made is, that the jail<\/p>\n
authorities are paying only Rs. 9\/- per day, on the<\/p>\n
ground, that the amount of diet and clothing etc. are<\/p>\n
deducted from the wages earned, but looking to the<\/p>\n
cost of diet and cloth, borne by the respondent, if<\/p>\n
deducted from the scale of minimum wages, payment of<\/p>\n
Rs. 9\/- per day is wholly illegal, and has prayed for<\/p>\n
direction to calculate the amount of wages, after<\/p>\n
deduction of appropriate cost of diet and clothing<\/p>\n
etc. from the scale of minimum wages, at present, and<\/p>\n
to adjust the amount so arrived at, against the amount<\/p>\n
of fine, and to compute the period of imprisonment to<\/p>\n
be undergone by him, and to release him accordingly.<\/p>\n
         A reply to the writ petition has been filed<\/p>\n
annexing the photostat copy of the judgment of this<\/p>\n
Court. From a look thereat, we find, that the<\/p>\n
substantive sentence of imprisonment, awarded to the<\/p>\n
accused for both the offences are reduced to<\/p>\n
imprisonment to the period of 10 years on each count.<\/p>\n
However, the sentence of fine as imposed, and<\/p>\n
imprisonment to be undergone in default of payment of<\/p>\n
fine, as ordered by the learned trial court, was<\/p>\n
maintained, and only substantive sentences were<\/p>\n
ordered to run concurrently, and it was further
\n                                                          5<\/span><\/p>\n
expressly mentioned, that after serving out the<\/p>\n
rigorous imprisonment for 10 years, the period of<\/p>\n
sentence of imprisonment in default of payment of fine<\/p>\n
shall be counted separately. Further reply to the writ<\/p>\n
petition has been filed wherein the fact of<\/p>\n
conviction, and imposition of sentence were not<\/p>\n
disputed, and it was pleaded that the petitioner was<\/p>\n
required to undergo one year’s rigorous imprisonment<\/p>\n
in default of payment of fine of Rs. 2 lakh, and<\/p>\n
another period of one year’s rigorous imprisonment in<\/p>\n
default of payment of fine of Rs. 2 lakh for the two<\/p>\n
offences as above, and has to serve both the sentences<\/p>\n
separately, and independently. It is contended that<\/p>\n
since the sentence of imprisonment to be suffered in<\/p>\n
default of payment of fine have not been made to run<\/p>\n
concurrently the accused has to undergo two years<\/p>\n
rigorous imprisonment. It was pleaded that even as per<\/p>\n
the provisions of Cr.P.C., the sentence of<\/p>\n
imprisonment in default of payment of fine is<\/p>\n
independent of sentence of imprisonment, and has to be<\/p>\n
served separately having failed to pay the fine for<\/p>\n
each of the sentences. It was also pleaded that the<\/p>\n
bar of Section 32-A is very much attracted even<\/p>\n
against earning remission where the accused is<\/p>\n
undergoing sentence of imprisonment in default of<\/p>\n
payment of fine as that too is very much a part of the<\/p>\n
sentence within the meaning of Section 32-A. Thus, it<\/p>\n
was contended that the accused is not in illegal<\/p>\n
custody.\n<\/p>\n<\/p>\n
           Then, an additional reply has further been<\/p>\n
filed on 6.3.2009, pleading interalia, that the<\/p>\n
payment of wages, for doing the work by the prisoner,
\n                                                          6<\/span><\/p>\n
is matter which is governed by the circular dt.<\/p>\n
1.11.2000. In the circular, the amount to be paid to<\/p>\n
skilled and unskilled prisoners, are prescribed.<\/p>\n
According to which, the prisoners of the category of<\/p>\n
the present accused is to be paid the wages at the<\/p>\n
rate of Rs. 9\/- per day. Then it is pleaded, that the<\/p>\n
convict has worked in jail from 30.7.2005 to 5.3.2009,<\/p>\n
from out of which he was on interim bail for a period<\/p>\n
of 3 months and 2 days, and therefore, he has earned<\/p>\n
the wages to the tune of Rs. 10,800\/- only, for doing<\/p>\n
the work in jail. Some calculations have also been<\/p>\n
given about the balance of fine to be remaining due,<\/p>\n
for which he has to suffer imprisonment. It has been<\/p>\n
prayed that the petition be dismissed.<\/p>\n
         Arguing the writ petition learned counsel for<\/p>\n
the petitioner submits, that there is no provision<\/p>\n
under the Criminal Procedure Code or Indian Penal<\/p>\n
Code, making provision about the sentence of<\/p>\n
imprisonment to be suffered in default of sentence of<\/p>\n
payment of fine, requiring to be run concurrently, or<\/p>\n
consecutively, and therefore, on general principles,<\/p>\n
they are required to be held to run concurrently.<\/p>\n
Then, about the nature of sentence of imprisonment, to<\/p>\n
be suffered in default of payment of fine, learned<\/p>\n
counsel relied upon judgment of Hon’ble the Supreme<\/p>\n
Court in Shantilal Vs. State of M.P., reported in 2008<\/p>\n
Cri.L.J.-386. Then it was contended, that according to<\/p>\n
Prisons Rules, 1951 Section-III, the prisoner is<\/p>\n
entitled to remission, and in view of the spirit of<\/p>\n
the nature of imprisonment to be suffered in default<\/p>\n
of sentence of payment of fine, it was contended, that<\/p>\n
bar of Section 32A should be held to be not attracted.
\n                                                          7<\/span><\/p>\n
Then, the submission about adjustment of the wages<\/p>\n
earned by accused, by working in jail, in payment of<\/p>\n
sentence of fine, was pressed into service. Reliance<\/p>\n
was also placed on the judgment of this Court in D.B.<\/p>\n
Civil Writ Petition No. 6462\/2007 Rishipal Vs. State<\/p>\n
of Rajasthan, decided on 13.3.2008, to contend, that<\/p>\n
the period of parole should be considered period<\/p>\n
served out as a sentence. Reliance was also placed on<\/p>\n
another judgment of the Hon’ble Supreme Court, in Dadu<\/p>\n
@ Tulsidas Vs. State of Maharashtra, reported in 2000<\/p>\n
Cr.L.J.-4619, to contend, that therein substantial<\/p>\n
part of the provisions of Section 32A have been struck<\/p>\n
down as ultra vires the Constitution. Since during<\/p>\n
course of arguments, an objection was raised on the<\/p>\n
side of the respondent, about maintainability of the<\/p>\n
habeas corpus petition, reliance was placed on the<\/p>\n
judgment of the Hon’ble Supreme Court in Deepak Bajaj<\/p>\n
Vs. State of Maharashtra, reported in 2008 AIR-SCW-<\/p>\n
7788, to contend, that even in such circumstances the<\/p>\n
habeas corpus petition would be maintainable.<\/p>\n
         Learned Public Prosecutor on the other hand<\/p>\n
submitted, that by this petition, the petitioner<\/p>\n
indirectly seeks to have the judgment of conviction<\/p>\n
and sentence reviewed, by praying for making the two<\/p>\n
sentences of imprisonment in default of payment of<\/p>\n
fine to run concurrently, which cannot be done in<\/p>\n
habeas corpus jurisdiction. Regarding Shantilal’s case<\/p>\n
it was contended, that that judgment was rendered in<\/p>\n
regular appeal, while in the present case the<\/p>\n
conviction and sentence of imprisonment has already<\/p>\n
become final. Then it was contended, that so far<\/p>\n
Section 32-A is concerned, this part of the provision,
\n                                                          8<\/span><\/p>\n
prohibiting admissibility of remission, has clearly<\/p>\n
been upheld by the Hon’ble Supreme Court. Then,<\/p>\n
regarding wages it was submitted, that the rate of<\/p>\n
wages has been prescribed by the circular Annexure<\/p>\n
R\/2, which has not been assailed by the petitioner,<\/p>\n
and so far as the matter of actual working days of the<\/p>\n
prisoner is concerned, that is a matter of accounting,<\/p>\n
for which the accused can always make representation,<\/p>\n
which will be decided in accordance with law, which<\/p>\n
right of the prisoner is recognised under Article 161<\/p>\n
of the Constitution, but then on that count habeas<\/p>\n
corpus petition cannot be maintained. Thus it was<\/p>\n
prayed, that the petition be dismissed.<\/p>\n
         We have heard learned counsel and have<\/p>\n
considered the relevant legal provisions, and the case<\/p>\n
law cited by the learned counsel for the petitioner.<\/p>\n
          We may at this place refer to provisions of<\/p>\n
Section 64 of the Indian Penal Code, which clearly<\/p>\n
provides, that in every case of an offence, punishable<\/p>\n
with imprisonment as well as fine, in which the<\/p>\n
offender is sentenced to a fine, whether with or<\/p>\n
without imprisonment, and in every case of an offence<\/p>\n
punishable with imprisonment or fine, or with fine<\/p>\n
only, in which the offender is sentenced to a fine, it<\/p>\n
shall be competent to the Court, which sentences such<\/p>\n
offender, to direct by the sentence, that in default<\/p>\n
of payment of the fine, the offender shall suffer<\/p>\n
imprisonment for a certain term, which imprisonment<\/p>\n
shall be in excess of any other imprisonment to which<\/p>\n
he may have been sentenced, or to which he may be<\/p>\n
liable under a commutation of a sentence. Thus, by
\n                                                         9<\/span><\/p>\n
virtue of the provisions of Section 64, it is<\/p>\n
competent for Court to direct, that the sentence in<\/p>\n
default of payment of fine, shall be undergone in<\/p>\n
addition to the substantive imprisonment, imposed for<\/p>\n
the offences concerned. Then, we come to the<\/p>\n
provisions of Section 427 Cr.P.C., which read as<\/p>\n
under:-\n<\/p>\n<\/p>\n
    “427. Sentence on offender already sentenced for
\n    another offence.-(1) When a person already
\n    undergoing a sentence of imprisonment is sentenced
\n    on a subsequent conviction to imprisonment or
\n    imprisonment for life, such imprisonment or
\n    imprisonment for life shall commence at the
\n    expiration of the imprisonment to which he has
\n    been previously sentenced, unless the Court
\n    directs that the subsequent sentence shall run
\n    concurrently with such previous sentence.<\/p>\n
    Provided that where a person who has been
\n    sentenced to imprisonment by an order under
\n    Section 122 in default of furnishing security is,
\n    whilst undergoing such sentence, sentenced to
\n    imprisonment for an offence committed prior to the
\n    making of such order, the latter sentence shall
\n    commence immediately.<\/p>\n
\n
    (2) When a person already undergoing a sentence of
\n    imprisonment for life is sentenced on a subsequent
\n    conviction to imprisonment for a term or
\n    imprisonment for life, the subsequent sentence
\n    shall run concurrently with such previous
\n    sentence.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
          Thus, per force sub-section (1) the sentences<\/p>\n
are to run consecutively, i.e. one after another,<\/p>\n
unless the Court directs, that subsequent sentence<\/p>\n
shall run concurrently with such previous sentence.<\/p>\n<\/blockquote>\n
However, according to sub-section (2), when a person<\/p>\n
is already undergoing sentence of imprisonment for<\/p>\n
life, even when is subsequently convicted and<\/p>\n
sentenced to imprisonment for life, the subsequent<\/p>\n
sentence is to run concurrently with previous
\n                                                         10<\/span><\/p>\n
sentence. Thus, the contention based on general<\/p>\n
principles does not stand good, inasmuch as the<\/p>\n
general principle is contained in Section 427(1), and<\/p>\n
thus according to general principle the sentences are<\/p>\n
to run consecutively, unless the Court otherwise<\/p>\n
directs. Accordingly, on the general principles, the<\/p>\n
sentence of imprisonment to be suffered in default of<\/p>\n
payment of fine is also required to be run<\/p>\n
consecutively, unless the Court otherwise directs.<\/p>\n
Obviously there is no provision of law, brought to our<\/p>\n
notice, by either side, that in absence of any such<\/p>\n
specification, the sentence of imprisonment to be<\/p>\n
suffered in default of payment of fine, for different<\/p>\n
offences, is to run concurrently. Obviously, neither<\/p>\n
the learned trial court, nor this Court, while<\/p>\n
deciding the appeal, directed the period of<\/p>\n
imprisonment to be suffered, in default of payment or<\/p>\n
fine, to run concurrently, and therefore, in our view<\/p>\n
it would not be open for us, exercising habeas corpus<\/p>\n
jurisdiction, to hold, that they should run<\/p>\n
concurrently, or to direct, that they should run<\/p>\n
concurrently. Resultantly the period of imprisonment<\/p>\n
to be suffered in default of payment of fine imposed<\/p>\n
under the two offences is to run consecutively.<\/p>\n
         Then, we take up the contention based on the<\/p>\n
period of parole. As an abstract legal proposition,<\/p>\n
Rishipal’s judgment apart, even Hon’ble the Supreme<\/p>\n
Court in Dadu’s case has clearly held in para-6, where<\/p>\n
it was dealing with the case under the N.D.P.S. Act<\/p>\n
itself, as under:-\n<\/p>\n<\/p>\n
    “6. Parole is not a suspension of the sentence.
\n                                                         11<\/span><\/p>\n
    The convict continues to be serving the sentence
\n    despite granting of parole under the Statute,
\n    Rules, Jail Manual or the Government Orders,
\n    “Parole” means the release of a prisoner
\n    temporarily for a special purpose before the
\n    expiry of a sentence, on the promise of good
\n    behaviour and return to jail. It is a release from
\n    jail, prison or other internment after actually
\n    been in jail serving part of sentence.”<\/p>\n<\/blockquote>\n
         Therefore, on this aspect there is no<\/p>\n
controversy. The question remains, as to how it is<\/p>\n
applicable in the present case. It is nowhere the<\/p>\n
allegation, that after serving out the substantive<\/p>\n
sentences for the two offences, the accused ever<\/p>\n
enjoyed any parole, while suffering imprisonment,<\/p>\n
required to be undergone in default of payment of<\/p>\n
fine, nor is it shown, that the respondents are<\/p>\n
treating any period of time, which may have been<\/p>\n
enjoyed by the accused as parole, as a period not<\/p>\n
undergone as imprisonment in default of payment of<\/p>\n
fine. Therefore, this only remains an academic<\/p>\n
submission.<\/p><\/blockquote>\n
         Then, we take up the question of<\/p>\n
admissibility of remission. A Division Bench of this<\/p>\n
Court in Santosh Vs. Union of India, reported in 1998<\/p>\n
Cri.L.J. -612, had dealt with the aspect of<\/p>\n
admissibility of remission in cases of persons<\/p>\n
convicted under the N.D.P.S. Act, as the vires of<\/p>\n
provisions of Section 32-A were challenged, and the<\/p>\n
provision was held to be constitutionally valid, and<\/p>\n
this part of the provision has been upheld by the<\/p>\n
Hon’ble Supreme Court also in Dadu’s case. Therefore,<\/p>\n
we have to proceed on the basis, that this part of<\/p>\n
Section 32-A, where it bars the admissibility of<\/p>\n
remission, is a valid legislation.\n<\/p>\n
                                                         12<\/span><\/p>\n
         The question then is, as to whether the bar<\/p>\n
is attracted only qua the substantive sentence of<\/p>\n
imprisonment, or imprisonment to be suffered in<\/p>\n
default of payment of fine as well. We may straight-<\/p>\n
way quote the provisions of Section 32-A of the<\/p>\n
N.D.P.S. Act, which reads as under:-\n<\/p>\n<\/p>\n
    “32-A. No suspension, remission or commutation in
\n    any sentence awarded under this Act:-<\/p>\n
    Notwithstanding anything contained in the Code of
\n    Criminal Procedure, 1973 (2 of 1974) or any other
\n    law for the time being in force but subject to the
\n    provisions of Section 33, no sentence awarded
\n    under this Act (other than Section 27) shall be
\n    suspended or remitted or commuted.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
         A look at the above provision shows, that<\/p>\n
except the sentences awarded for offence under Section<\/p>\n
33, no sentence awarded under the Act, can be<\/p>\n
suspended, or remitted, or commuted. Reverting to<\/p>\n
Section 64 IPC, that makes it clear, that sentence of<\/p>\n
fine is also very much a sentence. It is very much a<\/p>\n
part of the punishment, imposable under the relevant<\/p>\n
provisions of the relevant Act, for the offence found<\/p>\n
to have been committed by the accused, and in the<\/p>\n
present case, the sentences of fine have been imposed<\/p>\n
for the two offences, found to have been committed,<\/p>\n
being Section 8\/21 and 8\/23 of the N.D.P.S. Act. Thus,<\/p>\n
the sentences of fine, do very much constitute<\/p>\n
“sentence awarded under this Act” within the meaning<\/p>\n
of Section 32-A of the N.D.P.S. Act, and in<\/p>\n
Dadu’s case, the Hon’ble Supreme Court, in para-15 has<\/p>\n
clearly upheld, this part of the provision of Section<\/p>\n
32-A, by holding as under:-\n<\/p><\/blockquote>\n
                                                         13<\/span><\/p>\n
\n<\/blockquote>\n
    “15…..There is, therefore, no vice of
\n    unconstitutionality in the section in so far as it
\n    takes away the powers of the Executive conferred
\n    upon it under Ss. 432 and 433 of the code, to
\n    suspend, remit or commute the sentence of a
\n    convict under the Act.”<\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
         On the face of this legal position, in our<\/p>\n
view, the accused cannot claim to have earned any<\/p>\n
remission, on account of his having served<\/p>\n
imprisonment, in default of payment of fine either.<\/p><\/blockquote>\n
         There is no dispute in the legal proposition,<\/p>\n
as propounded in Shantilal’s case, by the Hon’ble<\/p>\n
Supreme Court, that the imprisonment to be suffered on<\/p>\n
account of default of payment of fine is only mode of<\/p>\n
recovery, and it is to be proportionate. In this<\/p>\n
regard it is not the case of the petitioner, that he<\/p>\n
has made any payment of fine as such, and the only<\/p>\n
contentions raised are, firstly, that the amount of<\/p>\n
wages earned by him for the work done in the jail<\/p>\n
factory is required to be adjusted in payment of fine,<\/p>\n
and the period of imprisonment to be undergone is<\/p>\n
required to be proportionately reduced, and the second<\/p>\n
contention raised is, about the rate of wages, which<\/p>\n
should be paid to the accused, for the work done,<\/p>\n
thirdly there appears some dispute also, about the<\/p>\n
period of, or number of days, for which the accused<\/p>\n
has worked in the factory.\n<\/p>\n<\/p>\n
         Out of the above three contentions, so far<\/p>\n
the first one is concerned, we find force therein,<\/p>\n
that the amount of wages earned by the accused, by<\/p>\n
working in jail factory, and which is payable to the<\/p>\n
accused, is required to be adjusted by way of payment
\n                                                         14<\/span><\/p>\n
of fine, and the period of imprisonment to be<\/p>\n
undergone by him in default of payment of fine, is<\/p>\n
required to be proportionately reduced. In our view,<\/p>\n
the respondents also can have no legal or justifiable<\/p>\n
objection to this proposition.\n<\/p>\n<\/p>\n
         So far as the second aspect is concerned, the<\/p>\n
matter of rate of wages to be paid, is a matter<\/p>\n
governed by the circular dt. 1.11.2000 Annexure R\/2,<\/p>\n
which has been issued by the State Government, and<\/p>\n
parameters have also been laid down, as to who shall<\/p>\n
be taken to be skilled, and who is to be taken to be<\/p>\n
unskilled, and it has been prescribed that the nature<\/p>\n
of work shall be assigned accordingly. According to<\/p>\n
this circular the skilled shall work in the jail<\/p>\n
factory, and unskilled prisoner should work in jail<\/p>\n
maintenance, wherein prisoners are kept. This circular<\/p>\n
obviously is not under challenge before us. That apart<\/p>\n
the question as to how this rate is to be arrived at,<\/p>\n
involves various factors to be taken into account, and<\/p>\n
for that, obviously uniform parameters were, and are,<\/p>\n
required to be laid down, and making any interference<\/p>\n
therein, would require a detailed investigation into<\/p>\n
bundle of disputed questions of fact, which obviously<\/p>\n
is not within the scope of our jurisdiction, while<\/p>\n
exercising habeas corpus jurisdiction. Therefore, in<\/p>\n
the present case, as appears from the history ticket<\/p>\n
of the accused prisoner, as was requisitioned by us<\/p>\n
from the learned Public Prosecutor, it is clear, that<\/p>\n
the accused was deputed to work in the maintenance,<\/p>\n
obviously being unskilled labour. It is a different<\/p>\n
story, that we also find an order in the history<\/p>\n
ticket, that the prisoner shall work in the factory.
\n                                                         15<\/span><\/p>\n
          Therefore, in our view, for whatever period<\/p>\n
he has worked, the wages earned by him are required to<\/p>\n
be computed, in accordance with the circular Annexure<\/p>\n
R\/2.\n<\/p>\n<\/p>\n
         Then, the question is as to for what period<\/p>\n
of time he has worked. In the petition it has been<\/p>\n
claimed, that he had worked for all the time he<\/p>\n
remained in jail, while from the said history ticket,<\/p>\n
it transpires that the prisoner had enjoyed one parole<\/p>\n
of 12 days, and had got temporary suspension of<\/p>\n
sentence, as contra distinguished from parole also,<\/p>\n
and it also transpires, that at times the accused had<\/p>\n
voluntarily absented from work regularly also. In view<\/p>\n
of the above, in our habeas corpus jurisdiction, we do<\/p>\n
not stand advised to undertake this detailed exercise,<\/p>\n
to go into all these disputed questions of fact, as to<\/p>\n
on what particular date or dates the accused had<\/p>\n
worked, or on what particular date or dates he<\/p>\n
voluntarily absented, so also, as was attempted by the<\/p>\n
learned counsel for the petitioner to contend, as to<\/p>\n
what is the procedure prescribed for recording, that<\/p>\n
the accused had absented from work. Therefore, we are<\/p>\n
not inclined to go into this aspect of the matter.<\/p>\n
         We are not impressed with the contention of<\/p>\n
the learned Public Prosecutor, that the accused should<\/p>\n
make representation under Article 161 of the<\/p>\n
Constitution, instead of approaching this Court in<\/p>\n
habeas corpus jurisdiction. From bare reading of<\/p>\n
Article 161 it is clear, that it confers power on His<\/p>\n
Excellency to grant pardons, reprieves, respites, or
\n                                                         16<\/span><\/p>\n
remissions of punishment or to suspend, remit or<\/p>\n
commute the sentence of any person, convicted of any<\/p>\n
offence, against any law relating to a matter to which<\/p>\n
the executive power of the State extends. As found<\/p>\n
above, the power of the Executive, to suspend, remit,<\/p>\n
or commute, stands abrogated by Section 32-A, and by<\/p>\n
claiming the relief as claimed in this petition, about<\/p>\n
computation of rate of wages, and calculation of the<\/p>\n
days for which he has worked, does not fall within the<\/p>\n
expression pardons, reprieves, respites or remission<\/p>\n
of punishment. The accused claims only his right, and<\/p>\n
not any mercy or indulgence.\n<\/p>\n<\/p>\n
          In that view of the matter the jail<\/p>\n
authorities are required to make calculations, and<\/p>\n
computations, themselves. Obviously, if the accused<\/p>\n
finds, that any error is committed in such calculation<\/p>\n
or computation, as a result of which he happened to be<\/p>\n
detained in custody, for period of time, beyond what<\/p>\n
he was required to be detained according to the<\/p>\n
accused, then obviously, he is free to take<\/p>\n
appropriate legal action against the detaining<\/p>\n
authority, for appropriate and adequate compensation.<\/p>\n
         Consequently, the present petition is<\/p>\n
disposed of as under:-\n<\/p>\n<\/p>\n
         (1) It is held that imprisonment, to be<\/p>\n
suffered by the accused in default of payment of fine<\/p>\n
imposed for the two offences, is to be suffered<\/p>\n
consecutively, and not concurrently.<\/p>\n
         (2) The accused is not entitled to remission,
\n                                                         17<\/span><\/p>\n
for the period of imprisonment undergone by him in<\/p>\n
default of payment of fine, imposed for the offence<\/p>\n
under Section 8\/21 and 8\/23 of the N.D.P.S. Act.<\/p>\n
         (3) Period of parole enjoyed by the accused,<\/p>\n
while undergoing imprisonment in default of payment of<\/p>\n
fine, is required to be treated as a period of<\/p>\n
imprisonment undergone.\n<\/p>\n<\/p>\n
         (4) The wages, which the accused has earned,<\/p>\n
for the work done in the jail, is required to be<\/p>\n
computed in accordance with Circular Annexure R\/2.<\/p>\n
         (5) The jail authorities are required to<\/p>\n
calculate the actual number of days, on which the<\/p>\n
prisoner has worked, by verifying it from the record,<\/p>\n
and after giving reasonable opportunity of hearing to<\/p>\n
the petitioner, and then to compute the wages for that<\/p>\n
period, in accordance with Annexure R\/2.<\/p>\n
         (6) The wages so earned by the accused person<\/p>\n
are liable to be adjusted in the amount of fine<\/p>\n
imposed on the accused, in default of payment whereof<\/p>\n
he is undergoing imprisonment, and the period of<\/p>\n
imprisonment, required to be undergone by him in<\/p>\n
default of payment of fine, is required to be<\/p>\n
proportionately reduced.\n<\/p>\n<\/p>\n
         (7) The jail authorities are directed to<\/p>\n
accordingly undertake the exercise, within a period of<\/p>\n
four weeks from today, and then to release the<\/p>\n
prisoner on completion of the sentence, by calculating<\/p>\n
them as above.\n<\/p>\n
                                                          18<\/span><\/p>\n
           (8) If the accused finds, that any error is<\/p>\n
committed in such calculation or computation, as a<\/p>\n
result of which he happened to be detained in custody,<\/p>\n
for period of time, beyond what he was required to be<\/p>\n
detained according to the accused, then obviously, he<\/p>\n
is free to take appropriate legal action against the<\/p>\n
detaining authority, for appropriate and adequate<\/p>\n
compensation.\n<\/p>\n<\/p>\n
( C.M.TOTLA ),J.                      ( N P GUPTA ),J.\n\n\n\/Sushil\/\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Smt. Sukhminder Kaur vs State & Ors on 9 April, 2009 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-121253","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nSmt. 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