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 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 2 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 3 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 4 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 5 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, 6 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. 7 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, 8 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 9 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 10 sentence. 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. 11 The 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. 12 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:- 13 “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 14 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. 15 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