Period Served As Undertrial In One Case Can’t Be Set Off Against Sentence To Be Served In Another Case: Bombay HC [Read Judgment]

The Bombay High Court has dismissed a writ petition filed by Mulund blast convict Saquib Nachan.

A bench of Justice Ranjit More and Justice Anuja Prabhudessai was hearing Nachan’s petition wherein he sought the period of detention undergone by him in the MCOC case to be set off against the sentence of imprisonment in POTA case.

Case Background

Saquib Nachan had been in custody for a period of 7 years 10 months while facing trial in the Mulund blast case booked under Prevention of Terrorism Act (POTA).

He was released on bail in 2012 but was arrested in the same year for an offence under the Maharashtra Control of Organized Crime Act (MCOC).

He was convicted by the trial court in April 2016 and sentenced to 10 years’ imprisonment.

Nachan’s lawyer Sandeep Pasbola submitted that in terms of Section 428 of CrPC, the period during which his client was produced before POTA court (during the Mulund blast trial) is required to be set off as against the 10-year imprisonment imposed.

This period of imprisonment undergone in the MCOC case is a little over three years. Therefore, allowing Nachan’s petition would lead to his release.

Court’s Judgment

In the case of Atul Manubhai Parekh vs Central Bureau of Investigation, the apex court had held that under Section 428 of CrPC, the question of merger of sentence does not arise and the period of set-off is in respect of each separate case and the detention undergone by accused during investigation or trial of such case.

The court then referred to the case of Sanjay Shriram Gondchar vs State of Maharashtra, wherein another division bench of the high court held that petitioner is not entitled to get period of undertrial imprisonment suffered in one case for set off against the sentence to be undergone in another case.

Dismissing the petition, the court held that the period undergone by Nachan in MCOC case cannot be set off as against sentence imposed in POTA case.

Read the Judgment here.