# GOVT. OF ANDHRA PRADESH & ANR. ETC v. ANNE VENKATESWARE ETC. ETC

- **Citation:** [1977] 3 S.C.R. 7
- **Court:** Supreme Court of India
- **Decided:** 1977-02-17
- **Case number:** Writ Petition Nos. 1865, 1870 of 1976
- **Bench:** P. N. Bhagwati, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/govt-of-andhra-pradesh-anr-etc-v-anne-venkatesware-etc-etc-7250
- **Pages:** 7

## Headnote

Code of Criminal Procedure, 1973, ss. 428 & 418-S. 428 whether equates
undertrial detention or remand detention with 11nvrisonn11Jn.t on conviction for
re111ission purposes.-Whether allows period of preventive detention to. be set
off against tern1 of imprisonment on conviction-S. 418 whether 111cludes
serl'ice of warrant on accused alrea<tv in detention.
The cross appeals arose from two writ petitions filed by A. V. Rao and
N. V. Krishnaiah- in the High Court.
A. V. Rao's case \vas that while he was
already in oreventive detention. on December 18. 1969. a First Information
Report was lodged against him in connection with so1nc Sessions cases. Some
of the
co~accused in these cases were produced before the Magistrate on
December 19, 1969 for remand, but Rao was produced before him only
in
mid-April, 1970 after his release from preventive detention. The accused in
the Sessions cases were thereafter convicted and sentenced, and Rao filed a
writ petition asking for an order on the State (i-overnmcnt to set off u/s 428
Cr.P.C. 1973, the time between December 19, 1969 and April 13, 1970, against
his term of imprisonment, treating the said period a~ the period of detention
undergone by him as an undertrial prisoner, and also to take the same into
accotmt, for the purpose of remission of his sentence under the Prisons Act.
Rao contended that he could have been produced before the
Magistrate
for remand on December 19, 1969. The State Government contended that Rao
could not be prcxluced before the Magistrate for remand until the period of pre·
ventive detention was over.
In the case of Krishnaiah, he was in detention under the MISA, when his
appeal against conviction in a criminal case was dismissed by the High Court,
and a warrant was issued against him on December 1, 1975, but was served on
him only on December 30, 1975, when the order against him under the MISA
was revoked.
The High Court rejected the petitioners' contention regarding set off under
section 428 Cr.P.C. but accepted their contention regarding the benefit
of
remission.
Allowing the appeals by the State, and partly allowing the appeals by the
original writ petitioners, the Court,
HELD: (1) Section 428 of the Cr. P.C., 1973 only provides that the period
of detention of an accused as undertrial prisoner shall be set off against the term
of imprisonment imposed on him on conviction. It does not equate an ''undertrial detention or remand detention with imprisonment on convicti'on" or do
away with the difference in the two kinds of detention and put them on the
.same footing for all purposes.
[11 B-C]
G. V. Godse v. State of Maharashra, [1961] 3 SCR 440; 446, referred to.
(2) S. 428 expressly says that the "period of detention" mentioned refers
to the detentio~ .durin¥ the investigation, enquiry or trial in connecti~n with
the. same .case tn wp1ch ~~e accused p~rson has been convicted.
The period
dunng which the writ petitioners were in preventive detention cnn11ri-t br> set
off under section 428 against the term of imprisonment imposed on them [llG
12-A-EJ
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(3) SectiOf! 418 does not exclude a case \Vhere the \varra,nt concerns an
accu~e.d w~o 1s. already in detention.
We have not been referred to
anv
prov1s1on etthcr 1n the Cr. P.~. or in the MTSA which requires the service 0·f
the Wa!fant to be delayed unttl. after the p~r!od of preventive detention is over.
H
There 1s no bar to the preventive and punitive detention continuing simultaneously. [13A-B, CJ
2~240SCI/77
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SUPREME COURT REPORTS
[1977] 3 S.C.R.
Harad!zan Saha & Anr. v. State of West Bengal & Ors. [1975] 1 SCH ..
778, referred to.

## Text

7
GOVT. OF ANDHRA PRADESH & ANR. ETC.
v.
ANNE VENKATESWARE ETC. ETC.
February 17, 1977
[P. N. BHAGWATI AND A. C. GUPTA, JJ.]
Code of Criminal Procedure, 1973, ss. 428 & 418-S. 428 whether equates
undertrial detention or remand detention with 11nvrisonn11Jn.t on conviction for
re111ission purposes.-Whether allows period of preventive detention to. be set
off against tern1 of imprisonment on conviction-S. 418 whether 111cludes
serl'ice of warrant on accused alrea<tv in detention.
The cross appeals arose from two writ petitions filed by A. V. Rao and
N. V. Krishnaiah- in the High Court.
A. V. Rao's case \vas that while he was
already in oreventive detention. on December 18. 1969. a First Information
Report was lodged against him in connection with so1nc Sessions cases. Some
of the
co~accused in these cases were produced before the Magistrate on
December 19, 1969 for remand, but Rao was produced before him only
in
mid-April, 1970 after his release from preventive detention. The accused in
the Sessions cases were thereafter convicted and sentenced, and Rao filed a
writ petition asking for an order on the State (i-overnmcnt to set off u/s 428
Cr.P.C. 1973, the time between December 19, 1969 and April 13, 1970, against
his term of imprisonment, treating the said period a~ the period of detention
undergone by him as an undertrial prisoner, and also to take the same into
accotmt, for the purpose of remission of his sentence under the Prisons Act.
Rao contended that he could have been produced before the
Magistrate
for remand on December 19, 1969. The State Government contended that Rao
could not be prcxluced before the Magistrate for remand until the period of pre·
ventive detention was over.
In the case of Krishnaiah, he was in detention under the MISA, when his
appeal against conviction in a criminal case was dismissed by the High Court,
and a warrant was issued against him on December 1, 1975, but was served on
him only on December 30, 1975, when the order against him under the MISA
was revoked.
The High Court rejected the petitioners' contention regarding set off under
section 428 Cr.P.C. but accepted their contention regarding the benefit
of
remission.
Allowing the appeals by the State, and partly allowing the appeals by the
original writ petitioners, the Court,
HELD: (1) Section 428 of the Cr. P.C., 1973 only provides that the period
of detention of an accused as undertrial prisoner shall be set off against the term
of imprisonment imposed on him on conviction. It does not equate an ''undertrial detention or remand detention with imprisonment on convicti'on" or do
away with the difference in the two kinds of detention and put them on the
.same footing for all purposes.
[11 B-C]
G. V. Godse v. State of Maharashra, [1961] 3 SCR 440; 446, referred to.
(2) S. 428 expressly says that the "period of detention" mentioned refers
to the detentio~ .durin¥ the investigation, enquiry or trial in connecti~n with
the. same .case tn wp1ch ~~e accused p~rson has been convicted.
The period
dunng which the writ petitioners were in preventive detention cnn11ri-t br> set
off under section 428 against the term of imprisonment imposed on them [llG
12-A-EJ
.
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(3) SectiOf! 418 does not exclude a case \Vhere the \varra,nt concerns an
accu~e.d w~o 1s. already in detention.
We have not been referred to
anv
prov1s1on etthcr 1n the Cr. P.~. or in the MTSA which requires the service 0·f
the Wa!fant to be delayed unttl. after the p~r!od of preventive detention is over.
H
There 1s no bar to the preventive and punitive detention continuing simultaneously. [13A-B, CJ
2~240SCI/77
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SUPREME COURT REPORTS
[1977] 3 S.C.R.
Harad!zan Saha & Anr. v. State of West Bengal & Ors. [1975] 1 SCH ..
778, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeals
Nos.
418-419 and 484-485/76.
(From the Judgment and Order dated 6-7-1976 of the Andhra
Pradesh High Court in Writ Petition Nos.
1865,
1870 of 1976
respectively.)
P. Parn:eswara Rao, G. Narayana Rao and A. K. Ganguli, for the
appellants m Cr!. Appeals Nos. 418-419/76 and respondents in Crl.
Appeals Nos. 484-485/76.
R. K. Jain, for the appellant in Cr!. A. No. 484/76 and respondent in Cr!. A. No. 418/76.
S. L.aks!111;inarasu, for the appellant in Cr!. A. Ne. 485/76 and for
respondent in Cr!. A. No. 419/76.
The Judgment of the Court was delivered by
GUPTA, J.-These are a group of four appeals from
a common
Judgment of the Andhra Pradesh High Court partly allO\ving two
writ petitions, writ petition No. 1865 of 1976 filed by A. V. Rao, and
writ petition No. 1870 of 1976 made by N. V. Krishnaiah.
The
High Court rejected the petitioners' prayer for setting off under section 428 of the Code of Criminal Procedure, 1973 the periods during
whk:h they \\"ere in preventive detention against the tcrn1 of ilnprisonn1ent
imposed on thein on their conviction in a sessions trial, but accepted
their contention that they were entitled to the benefit of the remission
system under the Prisons Act, 1894 for the
period during which
they were in jail as undertrial prisoners before their conviction :
Criminal Appeals Nos. 418 and 419 of 1976 by State of Andhra
Pradesh are di,rected against the part of the High Court's Judgment
granting the writ petitioners the benefit of the remission system under
the Prisons Act treating for this purpose the period of undertrial
detention on the same footing as a term of imprisonment on conviction.
Appeal No. 418 arises out of writ petition No. 1865 of 1976
filed by A. V. Rao and Appeal No. 419 is from writ petition No. 1870
of 1976 made by N. V. Krishnaiah.
The writ petitioners have also
filed appeals against the part of the Judgment disallowing their prayer
for set off under section 428 of the Code of Criminal Procedure.
Criminal Appeals Nos. 484 and 485 of 1976 are by A. V. Rao and
N. V. Krishnaiah respectively.
All the four appeals are on certJficate
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of fitness granted by the High Court.
The relevant facts
are
as
follows.
A. V. Rao,
appellant
in
appeal 484 of 1976 and respondent in appeal 418 of
1976, was in detention under the
Preventive Detention Act
when on December 18,
1969 a first information report was
filed naming him among others as an accused in a case involving
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offences under section 121A and 120B read with section 395, and
section 120B read with section 44 7 of the Indian Penal Code, which
gave rise to sessions cases Nos. 106 of 1970 and 6 of 1_971 on the file
of the Additional Sessions Judge, Hyderabad. The detention order under
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ANDHRA PRADESH w .. . ANNE VENKATESWARE (Gupta, l.)
9
;the preventive detention law was revoked by the State Government
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•On April 11, 1970 and Rao was released on the next day, April 12.
He was then produced before the magistrate in connection with the
sessions cases on April 13, 1970; there is some doubt about this date
.because the record at some plru:es mentions !he date as April 18, but
•lhe discrepency is not of any significance on the questions arising for
.decision in these appeals.
On April 10, 1972 Rao was convicted
.along with .others and sentenced to various terms of imprisonment for
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the offences charged against him; the maximum sentence was rigorousimprisonment for four years. . The sentences were directed to run
.concurrently. His appeal against the order of conviction was dismissed by the High Court on November 28, 1975.
He filed writ
petition 1865 of 1976 asking for an order on the
Government of
Andhra Pradesh to set off under section 428 of the Code of Criminal
Procedure, 1973 the time between December 19, 1969 and April 13,
C
l 970 against his term of imprisonment treating the said period as the
period of detention undergone by him as undertrial prisoner, and to
take into account the entire 'period during which he was in detention
for the purpose of remission of his sentence under the Prisons Act.
The petitioner further claimed that had he been free at the time when
the F.I.R. was lodged on December 18, 1969, he would have
surrendered inunediately and would have been produced before
~he
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<Court for remand on the next day as some of the co-accused in the
case had been it was submitted that if the
"concerned authority"
who could but did not "take immediate and necessary steps to produce
the petitioner" before the magistrate, the petitioner should
not be
made to suffer.
The facts of N. V. Krishnaiah's case· am similar. Krishnaiah,
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appe\lant in appeal No. 485 and respondent in appeal No. 419, was
also an accused in the sessions cases l 06 of 1970 and 6 of 1971
with A. V. Rao and othero.
He however was not in detention when
the F. I. R. was lodged.
He was arrested in connection with the
sessions cases on December 19, 1969 and was in detention on remand
from December 21, 1969 to April 9, 1972.
He was also convicted by
the Additional Sessions Judge on April 10, 1972 and the maximum
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sentence in his case too was rigorous imprisonment for four years.
He also preferred an appeal to the High Court against the order of
conviction.
The High Court granted him bail and he was released
on bail on April 29, 1972., He was arrested under the Maintenance
of Internal Security Act, 1971 on June 26 197 5.
The High Court
dismissed the appeal on November 28, 197'.s.
A warrant of arrest
issued by the Additional Sessions Judge on December l 1975
was
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served on him on December 30, 1975, on which date the detention
order under the Maintenance of Internal Security
Act
wais
also
revoked.
On these Krishnaiah in •his writ petition sought an order
on the State of Andhra Pradesh to treat the "period from June 26,
1975 to November 28, 1975 as remand period" and to set off under
section 428 of the Co~e of Crim!nal Pro~edure this period during which
]1e was under .Prevenlive ~et~nlio!1, agamst '.he term of imprisonment
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llllposed on him on conv1ction m the sessions cases. It was also
contended that the; warrant issued by the Additional Sessions Judge
<lll December 1, 1975 should have been served on him immediately,
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that it was no fault of his that "the concerned authority" .chose to.
serve the warrant on December 30, 1975, and that during this peliod
of one month he should be deemed to have been serving the sentence
imposed on him.
A further prayer was made that the entire period
during which he was under detention be taken into
account for
remission of his sentence nnder the Prisons Act,
The question for consideration in appeals 418 and 419 of 1976
preferred by the State of Andhra Pradesn 1s, whether the period of
detention nndergone by the two writ petitioners in connection with
the sessions cases before their conviction could be treated as a part
of the period of imprisonment on conviction so as to entitle them to
remission of their sentences under the Prisons Act.
The Prisons Act,
as its preamble shows, is an Act to "amend the law
relating
to
prisons" and to "provide rnles for the regulation of such
prisons".
Section 3(5) of the Act defines "remission system" as the "rules for
the time being in force regulating the award of marks to, and the
consequent shortening of sentences of, prisoners in jail". Section 59
of the Prisons Act provides that the State Government may make
rules consistent with the Act in respect of the various matters specified
in clauses (1) to (28) of the section; under clause (5) of section 59
the State Government is authorised to make rules "for the award of
marks and the shortening of sentences". In their writ petitions both
the petitioners speak of remission under the "prison rules" without
specifying any rule nnder which relief is sought.
The High Court
viewed the question in this way :
Sec. 428 Cr!. P. C. clearly ordains that the remand
detention shall be set off against the term of imprisonment
imposed on the accused person on conviction. The section
further clarifies that 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.
In other words, the statute equates the nnder trial
detention or remand detention with imprisonment on conviction.
The provision, in so many words, treats the remand
detention as part of the period of imprisonment after conviction. If remission.s are given for
imprisonment
after
conviction, there is no plausible or understandable reason
why it should be denied to the remand period when the
statute equates both of them."
The High Court accordingly held that all the remissions that are
available or permissible to the two petitioners in regard to imprisonment on conviction are available to them even in respect
of
the
remand period and directed the authorities
"to work
out
these
remission and give the benefit to the petitioners".
We do not consider the view taken by the High Court on 1his
point cs correct.
Section 428 of the Code of Criminal Procedure,
1973 is in these terms :
Period of detention undergone by the accused to be set off against
the sentence of imprisonment.
"428. Where an accused person has, on conviction, been
sentenced to imprisonment for a term, the period of deten-
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ANDHRA PRADESH v. ANNE VENKATESWARE (Gupta, J.)
11
tion, 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 hirtl 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 im_posed on him."
:Section 428 provides that the period of detention of an accused as an
nndertrial prisoner shall be set off against the term of imprisonment
imposed on him on conviction.
The section only provides for a "set
-0ff", it does not equate an "undertria! detention or remand detention
with imprisonment on conviction".
The provision as to set off expresses a legislative policy, this does not mean that it does away with
the difference in the two kinds of detention and puts them on the
.same footing for all purposes.
The basis of the High Court's decision
does not, therefore, seem to be right.
Apart from that, the Prisons Act does not co~fer any right upon
the prisoner to claim remission.
It was pointed out in G. V. Godse
v. State of Maharashtra(') that " .... the Prisons Act does not confor on any authority a power to commute or remit sentences, it pro-
-vides only for the regulation of prisons and for the treatment of
prisoners confined therein.
Section 59 of the Prisons Act confers a
power on the State Government to make rules, inter alia., for rewards
for good conduct.
Therefore, the rules made under the Act should
be construed within the scope of the ambit of the Act." It was
explained that the rules under the Prisons Act do not substitute a
lesser sentence for a sentence awarded by the court. The rules enable
a prisoner to earn remissions but, as held in G. V. Godse's case, the
question of remission is exclusively within the province of the appropriate Government. If the Government decides to remit the punishment to which a person has been sentenced, the remission may be
worked out according to the rules framed under the Prisons Act.
This being the position, appeals 418 and 419 of 1976 must succeed.
The remaining two appeals, 484 and 485 of 1976, preferred respectively by Rao and Krishna~ah, may now be taken up for consideration.
The claim in both these appeals is that the period of
detention undergone by each appellant under the preventive detention
Jaw should be set off under section 428 of the Code Criminal Procedure against the term of imprisonment imposed on them on their
convi'Ction in the aforesaid sessions cases. The argnment is that the
expression "period of detention" in section 428 includes detention
under the Preventive Detention Act or the Maintenance of Internal
Security Act. It is true that the section speaks of the "period of
,detention'' undergone by an accused person, but it expressly says
that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has
been convicted.
The section makes it clear that the period of detention which it allows to be set off against-the term of imprisonment
(1) \1961] 3 S.C.R. 440, 446.
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SUPREME COUR"E REPORTS:
[1977] 3 S.C.R ..
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imposed on the accused on conviction must be: during the investigation, enquiry or trial in connection with. the "same case" in which
he has been convicted. We therefore agree with. the High Court that
the period during which the writ petitioners were. "in preventive detention cannot be set_ off under section 428 against the term of imprisonment imposed on them.
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There is however substance in the other point raised by the writ
petitioners regarding the computation of the period during which the·
writ petitioner in each case should be held to have suffered imprisonment on conviction.
In A. V. Rao's case (W.P. 1865/76), he was.
already in detention under the Preventive Detention Act when the
First Information Report was lodged on
December 18, 1969 in
connection with the sessions cases.
Some of the co-accused ;•n these·
cases were arrested and produced before the magistrate for remand·
on December 19, 1969, but Rao was produced before the magistrate·
sometime in April, 1970 after he was released from preventive detention. n was argued that he also could have been produced before·
the magistrate for remand on December 19, 197U.
On behalf of
the respondent, State of Andhra Pradesh, it was contended tfiat as
Rao was already in detention under the Preventive Detention Act,
it was not possible to produce him before the magistrate for remand·
until the period of preventiveJ detention was over; we do not find any
justification in law for the position taken up by the !State.
Rao being
already in custody, the authorities could have easily produced him•
before the magistrate when the flrst Tnformatfon Report was lodged.
Nothing has been pointed out to ns either fn the preventive detention
law or the Code of Criminal Procedure which can be said to be a·
bar to snch a course.
That being so we think that the claim that the
entire period from December 19, 1969, when many of (he co-accused·
were produced before the magistrate to Aprif 18; 1970 should be
treated as part of the period during which Rao was under detention"
as an under trial prisoner, must be :accepted as valid.
A. V. Rao's
Appeal No. 484 of 1976 is allowed to this extent.
In the case of N. V. Krishnaiah, the Additional Sessions Jiidge,
Hyderabad, issued a warrant on December 1, 1975 after his appear
against conviction was dismissed by the High Court on November 28,
1975.
The: warrant, however, was served on him only on December
30, 1975 on which date the order under maintenance of Internal'
Security Act was revoked.
It is claimed· that the warrant could'
have been served immediately on that dismissal of the appeal
on November 28, 1975 ancl the accused was not responsible if the
authority concerned chose to serve the warrant on him
Off
December 30, 1975.
In this case also, the argument on behalf of
the State of Andhra Pradesh is that it was not possible to forward
Krislmaiah to jail consequent on his conviction in the session cases
until the period of his detention under the Maintenance of Internal'
Security Act was over. We do not see why that should be so. Section
418 requires the court passing the sentence to forthwith forward a warrant to the jail or other place in which he (accused) is, or is to be, con-·
fined, and, unless the ,accused is already confined in such jail or other
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ANDHRA PRADESH v. ANNE VENKATESWARE (Gupta,!.)
13
place, shall forward h:•m to such jail or other place, with the warrant".
Section 418 thus does not exclude a case where the warrant concerns
an accused who is already in detentionc On behalf of the State it
was sought to be argued that if the warrant wa~ served on Krishnaiah
immediately after his conviction was
upheld by the High Court in
appeal, the position would have been anomalous, because then he
would have been in detention both under· the preventive detention
law and as a convicted accused in a criminal case. We have not
been referred to any provision either in the Code of Criminal Procedure or in the Maintenance of Internal Security Act which requires
the service of the warrant to be delayed until after the period of preventive detention is over.
As regards the alleged anomaly of ru man
having to suffer two kinds of detention at the same time, one preventive and the other pnnitive, we do not find this to be a valid
objection.
The position is not different from the case where a man
is sentenced ,on different counts to a term of rigorous imprisonment
and another term of simple imprisonment, and the sentences are
directed to run concurrently.
Counsel for the State referred us to
the decision in Haradhan Saha and another v. The State of West
Bengal & others,(') in support of his
contentil'.m.
In our opinion
this case does not help him at all.
What was held in this case was,
inter alia that the nature of preventive detention is entirely different
from punitive detention, and there is no bar to a man being detained
under the preventive detention Jaw when a criminal proceeding for
the offences on which the preventive detention is based is pending.
If that be so, there can be no bar to the preventive and punit~ve
detentions continuing simultaneously. We therefore
allow
appeal
No. 485 of 1976 to the extent tbat Krishnaiah should be taken to
have serving the sentence imposed on hi~ from December 1, 1975.
In the result the criminal appeals Nos. 418 and 419 of 1976 5y
the State of Andhra Pradesh are allowed, and the appeals Nos. 484
;md 485 of 1976 preferred respectively by A. V. Rao and N. V.
Krishnaiah are allowed to the extent indicated aove.
M. R.
A]'Jpeals allowed.
(I) [1975] I S.C.R. 778.
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