IMPORTANT POINT
Narcotic--Premature release--No remission has been granted by Government of Haryana to convicts under NDPS Act.

Mr. Ram Chand Gupta, J. (Oral):- The present petition has been filed under Section 482 of the Code of Criminal Procedure (hereinafter to be referred as ‘Cr.P.C.’) to release the petitioner prematurely after issuing directions to respondent no.2 to verify the period undergone by the petitioner, who is a convict under Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as ‘NDPS Act’), including remissions, granted under paras 633-A, 639, 644 of Punjab Jail Manual and under Article 161 of the Constitution of India/ period of parole and furlough and if the petitioner has undergone the sentence awarded to him by the Court, after adding all remissions, paroles and furlough, he be released temporarily on bail to the satisfaction of the concerned Chief Judicial Magistrate during the pendency of Special Leave Petition against the order of this Court passed in Ekka Ram v. State of Punjab, Crl.W.P.No.839 of 2004, decided on 14.8.2005.

2. It is case of the petitioner that he was convicted in FIR No.188 dated 4.10.2000 under Section 15 of the NDPS Act, at Police Station Sadar, Tohana, District Fatehabad, by learned Additional Sessions Judge, Fatehabad, vide judgment dated 16.11.2002 and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1,00,000/-.

Reply has been filed by the respondent-State.

3. I have heard learned counsel for the parties and have gone through the whole record carefully.

4. It has been contended by learned counsel for the petitioner that he had already undergone five years, one month and twenty seven days of sentence as on 14.5.2010 excluding the period of parole and furlough, availed by him as per custody certificate, Annexure P1. It is further contended that petitioner was granted remissions from the date of his conviction as per Haryana Government notification issued from time to time and, however, the same were erroneously withdrawn by Director General of Prisons, Haryana, vide letter dated 28.6.2006 on the advice of Legal Remembrancer, Haryana. It has been further contended that inspite of bar created under Section 32-A of the NDPS Act, the remissions granted by Governor of the State, in exercise of powers under Article 161 of the Constitution of India, would be available to the convicts under NDPS Act, as the said provision does not effect the powers of Governor of the State to grant remissions. He has also referred to judgment rendered by this Court in Ekka Ram v. State of Punjab and others, in Crl.W.P.No.839 of 2004, decided on 14.9.2005, Annexure P3. It has been further contended that the said decision was challenged by State of Punjab by filing a Special Leave Petition before Hon’ble Supreme Court which was pending on the date of filing of this petition.

5. It is further contended that a similar controversy came before this Court in Crl.M.No.M-51171 of 2006 (Mahi Ram v. the Secretary & Financial Commissioner and others), Annexure P4, in which the following directions were given to the respondent-State by this Court:-

“(i) Before releasing the petitioner, the concerned Superintendent of Jail will verify the period undergone by the convict and the remissions granted under Article 161 of the Constitution of India and that if after subtracting the period of parole, the convict has undergone the sentence awarded by the Court, he shall be released temporarily on bail to the satisfaction of the Chief Judicial Magistrate during the pendency of Special Leave Petition filed by the State of Punjab in the case of Ekka Ram (SLP) Crl.No.2496 of 2006 arising from the final judgment and order dated 14.9.2005 passed in Cr.W.P.No.839 of 2004. The convict concerned will be granted the benefit of remission as per circular issued by the Government of Punjab under Article 161 after his conviction.

(ii) The petitioner will remain on bail during the pendency of SLP 2496 of 2006 in the Hon’ble Supreme Court. If as per judgment of Supreme Court benefit of remi