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2006 Supreme(P&H) 4535
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Virender Singh, A.N. Jindal, JJ.
Daler Singh – Applicant
Versus
State of Punjab – Respondent
Criminal Misc. No. 44549 of 2006 in Criminal Appeal No. 259-DB of 2000
Decided On : 13-12-2006
For the Applicant :Mr. K.S. Dhaliwal, Advocate
For the Respondent:Mr. K.S. Boparai, Additional Advocate General Punjab assisted by Mr. M.S. Sidhu, Senior Deputy Advocate General, Punjab, Mr. H.S. Hooda, Advocate General, Haryana with Mr. Siddharth Batra, Assistant Advocate General, Haryana, Mr. RS Rai, Senior Standing Counsel, U.T. Chandigarh
Mr. D.D. Sharma, Standing Counsel, Union of India
Headnote:
Narcotic Drugs & Psychotropic Substances Act - Suspension of Sentence - Section 15 - 37 - 32-A - 36-B - The judgment discusses the provisions of the Narcotic Drugs & Psychotropic Substances Act, 1985, particularly focusing on the suspension of sentence and release on bail during the pendency of the appeal. It highlights the amendments made to the Act, the powers of the Appellate Court, and the constitutional validity of Section 32-A. The court emphasizes the fundamental right of the accused to a speedy trial and justice, and the need to balance the right to liberty with the severity of the offences. The judgment also provides guidelines for the release of prisoners on bail based on the duration of their sentence and the nature of the offence.
Fact of the Case:
The applicant-appellant sought suspension of his substantive sentence under section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985, citing that he had already served more than seven years of his 12-year sentence and that his appeal was unlikely to be heard soon. The court, after considering various appeals and the plight of convicts, framed guidelines for the grant of bail when appeals cannot be heard within a reasonable time.
Finding of the Court:
The court found that the stringent provisions of the Act curtailed the powers of the Appellate Court to suspend the sentence, but emphasized the fundamental right of the accused to a speedy trial and justice. It declared Section 32-A, insofar as it ousted the jurisdiction of the Appellate Court to suspend the sentence during the pendency of the appeal, as unconstitutional. The court also provided guidelines for the release of prisoners on bail based on the duration of their sentence and the nature of the offence.
Issues: The issues revolved around the constitutional validity of Section 32-A, the powers of the Appellate Court to suspend the sentence, and the fundamental right of the accused to a speedy trial and justice.
Ratio Decidendi: The court held that the absolute bar on suspending the sentence, even if the delay in the appeal's disposal was not attributable to the appellant, would be against the intent and spirit of the Fundamental Rights and violative of the Constitutional mandate. It emphasized the need to balance the right to liberty with the severity of the offences and provided guidelines for the release of prisoners on bail based on the duration of their sentence and the nature of the offence.
Final Decision: The court allowed the applicant-appellant's request for suspension of his substantive sentence and directed his release on bail, considering the duration of his sentence and the unlikelihood of his appeal being heard in the near future.
Virender Singh, J.
The plight of convicts languishing in jails, after conviction, during the pendency of the appeals, on account of previous fixture of work has always been a matter of great concern for the Courts and of the protagonists of Human Rights, alike. The present case is also of the like nature.
2. Applicant-appellant Daler Singh is praying for suspension of substantive sentence awarded to him under section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'the Act') primarily on the ground that he has by now already undergone more than seven years of his sentence out of the awarded substantive sentence of 12 years and that besides that the appeal is not likely to be heard in near future.
3. Not only the present appeal but also a large number of other appeals filed by the convicts under the Act which are not likely to be taken up in near future, has attracted our attention and therefore, we are framing certain guidelines/policy for the grant of bail where the appeals against the conviction under the Act filed in this Court cannot be heard within a reasonable time.
4. We have heard Mr. K.S.Dhaliwal, learned counsel for the applicant-appellant and Mr. K.S. Boparai, Additional Advocate General, Punjab assisted by Mr. M.S.Sidhu, Senior Deputy Advocate General, Punjab and have also sought the assistance of Advocate General, Haryana, Senior Standing Counsel, Union of India and Senior Standing Counsel, Union Territory, Chandigarh on the point. Consequently, Mr. H.S.Hooda, learned Advocate General, Haryana, assisted by Mr. Siddharth Batra, AAG Haryana, Mr. RS Rai, Senior Standing Counsel, U.T. Chandigarh and Mr. D.D.Sharma, Standing Counsel, Union of India have been given audience on behalf of respective States.
5. Without delving deep into the scheme of the Act, we at this juncture are concerned only with a few provisions relating to the suspension of sentence and the release of the accused on bail during pendency of the appeal.
6. The original Act as incorporated in the year 1985 provided for minimum sentence of ten years and fine of Rs. 1,00,000/- and could extend to twenty years and a fine of Rs. 2,00,000/-, irrespective of the quantity of the contraband, except in cases of young men below 18 years of age or where a minor quantity of narcotics meant for consumption of the individual was involved. In some cases the sentence could extend to even death penalty. As regards the provisions of bail during trial, Section 37 was incorporated and it was made stringent by mentioning that the bail could be granted on the following conditions :-
"(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."
7. Prior to the amendment by way of Act No.2 of 1989, there were no specific provisions for post conviction suspension of sentence during the appeal. Examining the difficulties prevailing in the Courts that the accused involved in petty recoveries of the narcotics were being dealt with stringently by providing minimum sentence of 10 years, it was felt that sentence awarded against the accused should commensurate with the gravity of the offences and there should be specific provisions governing the suspension of sentence during the pendency of appeal and in order to over-come the aforesaid difficulties, Act No.2 of 1989 named as Narcotic Drugs & Psychotropic Substance (Amendment) Act, 1988 came into force with effect from 29.5.1989, wherein a table under Clauses 7(a) and 13(a) of Section 2 of the Act was brought on the statute book, classifying the quantity of the narcotic as commercial and non-commercial one. While relaxing the provisions regarding bail in the cases involving noncommercial quantity as was classified in the table, provisions
