B. C. PATEL, R. K. ABICHANDANI, M. R. CALLA, J.

( 1 ) THE Honble the Chief Justice Mr. B. N. Kirpal, (as he then was) of this Court sitting with Mr. R. K. Abichandani, J. , on 18th August 1994, considering the rival submissions, referred four questions to the Larger Bench which are as under :-[1] Whether the High Court can grant bail, parole or furlough to an accused convicted of an offence under Narcotics Drugs and Psychotropic Substances Act, during pendency of an appeal against the conviction and sentence or thereafter ?[2] Whether High Court in exercise of its writ jurisdiction under Article 226 and 227 of the Constitution of India, can suspend the sentence by granting parole, furlough or bail to an accused convicted of an offence under TADA?[3] Whether the High Court can exercise its writ jurisdiction and suspend the sentence of an accused convicted under TADA and whether such exercise should be undertaken in view of the observations made by the Supreme Court in the case of Kartarsingh, reported in 1994[2] J. T. p. 423 and in the case of Usman Daud reported in AIR 1988 SC p. 922?[4] Can High Court direct release on parole a convict undergoing sentence imposed by the competent court when an appeal arising out of said judgement of conviction and sentence is pending?

( 2 ) THE applicant of Special Criminal Application No. 1164/94 who was convicted by a competent court u/s 3[3] and 5 of the Terrorists and Disruptive Activities Act, [hereinafter referred as `tada Act] preferred an application for parole for a period of 10 days on a humanitarian ground, namely the marriage of his son. It is averred in the petition that on 5/8/94, applications were forwarded to the respondents but respondents have not replied to the petitioner. It is further averred that at last moment if application is rejected, it would not be possible to approach the Court thereafter for obtaining relief as by the time the Additional Public Prosecutor obtains instructions, the petition would become infructuous.

( 3 ) THE petitioner has no where mentioned in the application that the applicant has preferred an appeal against the order of conviction or not, and if preferred, what is the stage of the appeal. This aspect being a very relevant aspect, the petitioner ought to have mentioned about it. The petitioner has mentioned in para [7] of the petition about the fact of not filing an application or appeal before any Court in the subject matter - meaning thereby in the matter of parole.

( 4 ) THE applicant of Special Criminal Application No. 1082/94 who was convicted for offences punishable under the Narcotics Drugs and Psychotropic Substances Act [hereinafter referred to as `the NDPS Act], has preferred this application for parole on humanitarian ground, namely to perform the ceremony which is observed by the Muslims after the death of a deceased. The applicant has stated in his application that on 11/7/94, he preferred an application, however, Collector orally informed that the applicant will have to move I. G. Prison and hence, on 17/4/94, an application was forwarded to I. G. P. but there was no reply from I. G. P. As there was no reply, the applicant moved this Court inter alia stating that his father expired on 9/7/1994 and for performing the after death ceremony, he should be released on parole. It is also relevant to note that the petitioner has no where stated in the application whether he has preferred an appeal against the order of conviction and sentence recorded against him for offences punishable under the NDPS Act or not?

( 5 ) THE Division Bench in Special Criminal Application No. 1082/94 referred the matter to a Larger Bench and for that purpose, directed the office to place the matter before the Honble the Chief Justice for passing appropriate orders. The said Special Criminal Application was placed before the Bench. In view of the observations made by the Division Bench of this Court on 8th May 1991 in Criminal Misc. Application No. 971/90 [coram

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