IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Rev. No.70 of 2004 Reserved On: 7.7.2008 Date of decision: 21.07.2008 State of Himachal Pradesh Appellants Versus Hira Giri & Hira Singh Respondent Coram The Hon’ble Mr. Justice V.K.Ahuja,J. Whether approved for reporting1? No. For the appellant: Ms. Subh Mahajan, Dy. Advocate General. For the respondent: Mr. B.B.Vaid, Advocate. V. K. Ahuja, J (Oral) This order shall dispose of the Criminal Revision Petition filed by the State of H.P. under Sections 397,482,401 read with Article 227 of the Constitution of India against the order dated 26.2.2004, passed by the learned Sessions Judge, Solan. Briefly stated, the facts of the case are that the respondent was convicted and sentenced under Section 20 of the NDPS Act for imprisonment of 10 years rigorous imprisonment and a fine of Rs.1.00 lac. In case of default of payment of fine, he was to further undergo rigorous imprisonment for a period of three years. It was alleged that the respondent filed an appeal in this Court and his fine Whether the reporters of Local Papers may be allowed to see the Judgment? yes and sentence was reduced to three years rigorous imprisonment and a fine of Rs.33,000/-. In default of payment of fine, the respondent was to further undergo rigorous imprisonment for a period of one year. It was further alleged by the petitioner that the respondent deposited the fine of Rs.28,660/- after 48 days when he was undergoing imprisonment for failure to deposit the fine of Rs.33,000/- because his three years’ sentence imprisonment was already complete on 29.7.2003 and the sentence for default of payment of fine began from 30.7.2003. The respondent filed an application before the Court of learned Sessions Judge that fine has been excessively charged and hence he is entitled to recover the excess amount deposited. He also pleaded that the parole period spent by him was not counted while calculating the fine and, therefore, the learned trial Court passed an order for refund of the proportionate amount of fine deposited by him for 87 days during which period he remained on parole and the amount be released in his favour. The learned Sessions Judge allowed the application of the convict and being aggrieved by the order of the learned Sessions Judge, Solan, the State has come up in the present revision petition. I have heard the learned counsel for the parties and have gone through the records. The submissions made by the learned Deputy Advocate General were that the amount of fine had already been deposited by the petitioner. It was also submitted that remaining on parole is apparently not suspension of sentence. In case the petitioner remained on parole it is not to be counted towards sentence imposed and as such, the respondent was liable to pay the fine in full or undergo rigorous imprisonment in default and, therefore, he was not entitled to the refund of the excess payment of fine allegedly made by him. On the other hand, the learned counsel for respondent submitted that during the time the respondent remained on parole, it has to be excluded from the period of sentence and since the respondent had already undergone the sentence for excess period, the same was liable to be adjusted against the sentence imposed upon him in default of payment of fine and, therefore, he was entitled to the refund of the fine proportionately for the period he remained in custody. To substantiate his point, the learned counsel for respondent relied upon two decisions. The decision in Dadu @ Tulsi Das vs. State of Maharashtra (2000)8 Supreme Court Cases 437 shows that a person convicted under the NDPS Act is not entitled to seek suspension as a matter of right on the basis that provision in Section 32-A depriving Courts the power of suspending sentence has been held to be void. The decision in Poonam Lata vs. M.L.Wadhawan and others (1987)3 Supreme Court Cases 347 was also relied upon. A perusal of the same shows that it was held by their Lordships that the period for which the detenu remained on parole is to be excluded in computing total period of detention in regard to the parole for temporary release of detenu, it was held that the Court was not competent to grant parole to the detenu. It was held that it is the prerogative of the executive only under Section 12 of COFEPOSA. Referring to the terms parole, it was held in paras 8 and 13 as under: “…Parole is the release of a very long term prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his incarceration in the event of misbehavior. … The grant of parole is essentially an executive function. It would not be open to the court to reduce the period of detention by admitting the detenu on parole. Whether it be under Article 226 or 32 the court will have no jurisdiction either under the Act or under the general principles of law or in exercise of extraordinary jurisdiction to deal with the duration of the period of detention. Court cannot substitute the period of detention either by abridging or enlarging it. The only power that is available to the court is to quash the order in case it is found to be illegal. What in a given situation should be the sufficient period for a person to be detained for the purposes of the Act is one for the subjective satisfaction of the detaining authority. Preventive detention jurisprudence in this regard is very different from regular conviction followed by sentence that an accused is to suffer.” A perusal of the impugned order shows that the learned trial Court had referred to a judgment of the Apex Court but the said judgment is not reported in any journal and the attested copy of the judgment is also not on the file, therefore, it cannot be referred to. It is for the executive authorities to consider and calculate the period during which the respondent has been in custody. The sentence imposed of imprisonment in default of payment fine starts after the main sentence has been executed and the respondent has remained in custody for that period. The period during which a convict has been on parole cannot be separately excluded and it is a part of the sentence imposed and the period during which a person has been on parole cannot be deducted at the time of computation of sentence so as to hold that he had been in custody for this period which is liable to be adjusted at the time of computation of the sentence imposed in default of payment of fine. Accordingly, I am of the opinion that the order passed by the learned trial Court that the parole period is to be counted towards sentence having been undergone by the convict cannot be said to be correct since no separate benefit can be taken by the convict for the period he remained on parole since it is a concession given to a person and, as such, the respondent was not entitled to deduction of this period during which he remained on parole or refund of fine deposited by him. The fine has already been deposited by him and he was not entitled to the refund of that amount as directed by the learned trial Court and the order passed by the learned trial Court deserves to be set aside and is accordingly set aside. The revision petition is accordingly allowed. 21st July, 2008 (V.K.Ahuja),J. (sds)