Prolonged incarceration and the likelihood of delayed hearings are key factors for granting suspension of sentence under Section 389 of the Cr.P.C., even for repeat offenders, subject to strict conditions.

JUDGMENT :

Mr. Sureshwar Thakur, J.:- During pendency of the criminal appeal bearing No. CRA-S 2153-SB-2012, the convict/appellant filed the present application, whereby, he claimed relief in terms of Section 389 of the Cr.P.C. to the extent that, during the pendency of the criminal appeal (supra), the execution of the substantive sentence of imprisonment imposed upon him, thus be suspended. However, on the present application becoming listed before a learned Single Judge of this Court on 24.09.2016, through an order of even date becoming rendered thereons, therebys the learned Single Judge, till the making of an adjudication vis-a-vis the hereinafter extracted reference, thus proceeded to grant the supra benefit to the appellant, inasmuch as, the learned Single Judge temporarily suspended the execution of the substantive sentence of imprisonment imposed upon the appellant.

2. Be that as it may, the order passed on 24.09.2016, enclosing therein the reference, whereto an answer is required to be meted, becomes ad verbatim extracted hereinafter:

“This is an application for suspension of sentence of the applicant-appellant.

At the very outset, Deputy Advocate General has relied upon paragraph No. 30 of the judgment of Division Bench of this Court in ‘Daler Singh vs State of Punjab, 2007(1) RCR (Criminal) 316’, which is as under:-

“In our view, no bail should be granted to a proclaimed offender, absconder or the accused repeating the offence under the Act. Similarly a foreign national who has been indicted under the Act and other traffickers who stand convicted for having in their possession extra ordinary heavy quantity of contraband (like heroine, brown-sugar, charas etc.) shall not be entitled to the concession of bail as extending the said concession to such like convicts, in our view, would certainly be against the very spirit of the ‘Act’.”

Learned counsel for the applicant-appellant however relies upon an order of the learned Single Bench in the matter of ‘Jasdev Singh & Jassa vs. State of Punjab’ decided on 27.05.2015 in ‘CRA-S 4427-SB2014’. In this Judgment the learned Single Judge has granted suspension of sentence to a similar recidivist convict by relying upon on decision of the Full Bench of this Court in ‘Dalip Singh @ Deepa v. State of Punjab 2010 (2) R.C.R.(Criminal) 566’.

In my considered opinion, the judgment of Dalip Singh @ Deepa v. State of Punjab 2019 (1) Law Herald (P&H) 429 would not be strictly applicable. In Dalip Singh’s case (supra), there was no issue with regard to a repeat conviction and that is why the Full Bench considered only paragraph 29 of the judgment of “Daler Singh vs State of Punjab”. However no reference has been made to paragraph 30 which has been quoted above.

In view of above, I am constrained to record my respectful disagreement. Let this matter be placed before Hon’ble the Chief Justice for consideration by a Larger Bench as to whether the fact of repeat conviction under the NDPS Act would disentitle a convict from suspension of sentence. However since the similarly situated persons in Jasdev Singh’s case (Supra) have been granted the benefit. I deem it appropriate to grant the benefit of interim suspension of sentence to the applicant till the decision of this issue.

Interim bail to the satisfaction CJM/Duty Magistrate Amritsar.”

3. In Daler Singh’s case (supra), a coram of two Judges of this Court rendered a decision on 13.12.2006. The said decision was made on an application filed under Section 389 of the Cr.P.C. by the convict/applicant. In paragraph 34 of the said verdict, paragraph whereof becomes extracted hereinafter, the learned Division Bench, after referring to the facts enclosed in the said case, especially the one relating to convict/applicant suffering incarceration of more than seven years since the date of his arrest, thus became coaxed to grant the espoused relief to the convict/applicant.

“34. Adverting to the facts of the case in hand, the admitted position is that the applica