Point of Law: Pardon person - where the provisions of Section 306(4)(b) of the Cr.P.C. 1973 stipulate categorically to the effect that every person accepting a tender or pardon made under Sub-Section (1) of Section 306 of the Cr.P.C. 1973 shall unless is already on bail, be detained in custody until the termination of the trial, have to be interpreted strictly.

JUDGMENT :

ANU MALHOTRA, J.

1. Crl. M.C. No. 3813/2019 was filed by the petitioner seeking the setting aside of the impugned order dated 17.7.2019 of the learned Special Judge (NIA), Patiala House Courts, New Delhi in RC-20/2017/NIA/DLI apart from seeking grant of bail to the applicant in the said case. Vide the order impugned in the petition dated 17.7.2019, the joint application moved for release/discharge in relation to the applicant accused/approver Abdul Samad and Mahfooz Alam were taken up and in as much as the counsel for the applicant herein i.e. the approver, Abdul Samad vide an endorsement made on the application withdrew the application, the said application seeking the release/discharge from custody in respect of the applicant/approver Abdul Samad was dismissed as withdrawn.

2. The Court is presently not considering the merits or otherwise of the said impugned order dated 17.7.2019 and the present adjudication is in relation to Crl. M. (B) No. 7673/2020.

3. Vide the application Crl. M. (B) No. 7673/2020, the applicant has sought the grant of interim bail during pendency of the petition in NIA Case No. RC-20/2017/NIA/DLI or for such period as the Court may deems fit. It has been submitted through this application by the petitioner/applicant that he seeks release on interim bail on account of the COVID-19 pandemic prevalent in the country and that at the time of submission of the said application dated 3.7.2020, he had spent 29 months in jail since his arrest and around 26 months in jail since the date of his pardon, i.e. 16.5.2018. It has been submitted by the petitioner that the charge-sheet mentions 175 witnesses and around 55 documents have been sent to the FSL and that the trial has not even started and is likely to take a substantial period of time.

4. It has been submitted through the application, inter-alia, that as on date he being a pardoned person, there is no case pending against him and that he is in custody only by reason of the bar under Section 306 (4)(b) of the Cr.P.C. 1973. He inter-alia submits through his application itself that the threat to his life and liberty are real. The applicant, has nevertheless, despite the said submission of threat to his life and liberty being real, placed reliance on the verdict of this Court in Bangaru Laxman vs. CBI, ILR (2012) 2 Delhi 102, wherein it has been observed to the effect:

“9. Thus, the decisions of the Hon'ble Supreme Court and the Full Bench of this Court clearly hold that though it is mandatory to keep the person in custody unless on bail, however, the Court is empowered, in the interest of justice, to avoid abuse of process of law and for the right to life and liberty of an approver to grant bail, if not granted earlier. The pardon does not get vitiated on this count.

10. In the present case firstly in the interest of justice and the fundamental right to life and liberty of Respondent No. 2 when his statement has already been recorded before the learned Metropolitan Magistrate, no useful purpose will be served to send him in custody now. Further Respondent No. 2 has already been granted an order of anticipatory bail, which enures to his benefit till conclusion of the trial as held in Siddharam Satingappa Mhetre vs. State of Maharashtra and Others, (2011) 1 SCC 694. In view of the order of anticipatory bail directing sending Respondent No. 2 custody is not possible as the moment he is arrested he has to be released on bail as directed by the Court while granting anticipatory bail. The evidence of Respondent No. 2 and all other prosecution witnesses has been recorded. The case does not fall in the ambit of Section 308 Cr.P.C. Respondent No. 2 though not on bail technically, however, even if this Court directs him to be arrested, would have to be released on bail in view of the anticipatory bail order. I find no reason to interfere with the impugned order.”

The applicant has thus submitted that it is his fundamental right to life and liberty to be released in as