1. The petitioner, who is undergoing sentence having been convicted for the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act), seeks release from prison claiming benefit under Section 427(2) of the Code of Criminal Procedure (Cr.P.C.).

2. The petitioner was prosecuted by the IIIrd Additional Sessions Court, Kollam, in SC No.1770/2019 for the offence punishable u/s 20(b)(ii)(B) of the NDPS Act. During the crime stage in the said case, the petitioner was arrested on 29/8/2018. He was granted regular bail by the Ist Additional Sessions Court, Kollam, as per Ext. P1 order dated 12/10/2018. The bail was executed on 31/10/2018. However, he was not released from prison as he had been formally arrested on 15/9/2018 in connection with Crime No.569/2018 of Kilikolloor Police Station, SC No.1524/2018 of the Additional Sessions Court IV-Kollam for the offences punishable under Sections 120B, 364, 201 and 302 r/w 34 of IPC. The petitioner was tried and convicted for life in the said case on 14/5/2019. Later on, the petitioner was also found guilty, convicted and sentenced to undergo 5 years rigorous imprisonment and to pay a fine of Rs.25,000/- in default to suffer simple imprisonment for 6 months by the IIIrd Additional Sessions Court, Kollam in SC No.1770/2019 as per Ext.P2 judgment. On 27/11/2025, the Division Bench of this Court, as per Ext.P3 judgment, set aside the conviction and sentence of the petitioner in SC No.1524/2018 and he was acquitted.

3. According to the petitioner, he has been suffering the agony of incarceration for more than 7 years, i.e. from 29/8/2018 onwards, while he was sentenced in SC No.1770/2019 only for 5½ years, including the default sentence. The petitioner alleges that he became eligible for release under Section 427(2) of Cr.P.C. on 29/2/2024. It is in these circumstances he has approached this Court to give a direction to the respondents to release him forthwith.

4. I have heard Smt.Priya Shanavas, the learned counsel for the petitioner and Sri.M.C.Ashi, the learned Senior Public Prosecutor.

5. It is not in dispute that the petitioner was arrested in Crime No.51/2018 on 29/8/2018 and has been in prison continuously since then. He was sentenced under Ext. P2 judgment in SC No.1770/2019 (Crime No.51/2018) to 5½ years, including the default sentence. He has been in continuous detention for 7 years, 3 months and 15 days as of the date of filing of the above writ petition. Although the petitioner was granted bail on 12/10/2018 in Crime No.51/2018 and the bail was executed on 31/10/2018, he could not be released from prison because he had been formally arrested on 15/9/2018 in connection with Crime No.569/2018 (SC No.1524/2018). The crucial question for consideration in this writ petition is whether the petitioner is entitled to set off the period of incarceration from 31/10/2018 to 11/11/2022.

6. S.428 of Cr.P.C (Section 468 of BNSS) deals with the set off of the period of detention undergone by an accused person during the investigation, inquiry or trial against the sentence of imprisonment. It says that where an accused person has, on conviction, being sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. Section 428 of Cr.P.C. is preceded by Section 427, which deals with instances wherein one person is sentenced in a case when he has already been undergoing a sentence in another case. The first sub-section of Section 427 says that the sentence in the second conviction commences at the expiration of the imprisonment to which the accused has been previously sentenced, “unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.” The second sub-section to Section 427 says that 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. It is settled that when the first conviction is for life, subsequent sentences, irrespective of whether it is for life or only for a term, will run concurrently even without a declaration by the court of law. The purpose of Section 427, as well as Section 428, is to advance amelioration to the prisoner. The right of the convict to be allowed set off in one case in case of detention or imprisonment underwent by him in another case, fell for consideration of the Supreme Court in State of Maharashtra and Another v. Najakat Alia Mubarak Ali [(2001) 6 SCC 311], wherein three Judges of the Supreme Court had held that the period of imprisonment undergone by an accused as an undertrial during investigation, inquiry or trial of a particular case, irrespective of whether it was in connection with that very case or any other case, could be set off against the sentence of imprisonment imposed on conviction in that particular case. It was held that the words ‘same case’ used in Section 428 of Cr.P.C do not suggest that set off would be available only if the period undergone as an undertrial prisoner is in connection with the same case in which he was later convicted and sentenced to a term of imprisonment. It was clarified that the said expression merely denoted the pre-sentence period of detention undergone by an accused and nothing more. Thus, in this case, the period of detention undergone by the petitioner in connection with Crime No.569/2018 (SC No.1524/2018) could be set off against the imprisonment imposed on him on conviction in SC No.1770/2019. That apart, in this case, the conviction in SC No.1524/2018 was set aside by this court as per Ext.P3 judgment. Therefore, the detention undergone by the petitioner continuously right from 29/8/2018 has to be treated as the detention in SC No.1770/2019. Since the petitioner had already undergone a sentence in SC No.1770/2019, including the default sentence, he is liable to be released forthwith. Hence, the 2nd respondent is directed to release the petitioner forthwith if his detention is not required in any other case.

                  The writ petition is allowed as above.