Himachal Pradesh High Court
____________________________________________________ vs State Of Himachal Pradesh ... on 30 August, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP No. 3190 of 2023 in
Cr. Appeal No. 220 of 2022
Decided on: 30.08.2024
____________________________________________________
Rangila Ram .....Applicant/Appellant.
Versus
State of Himachal Pradesh ......Non-applicant/Respondent.
____________________________________________________
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
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Whether approved for reporting?
_____________________________________________________
For the applicant: Dr. Sahil Malhotra, Advocate.
For the non-applicant/State: Mr. I.N. Mehta, Senior Additional
Advocate General, with Mr. Navlesh
Verma, Ms. Sharmila Patial,
Additional Advocates General, and
Mr. J.S. Guleria and Mr. Raj Negi,
Deputy Advocates General.
Sushil Kukreja, Judge. (oral)
This order shall dispose of an application filed by the applicant/appellant under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS") seeking suspension of sentence awarded by learned Special Judge, Sarkaghat, camp at Jogindernagar, District Mandi, H.P., vide judgment of conviction and order of sentence dated 15.02.2022, in Sessions Trial No. 28/21/18, for the commission of offence punishable under Section 20 read with Section 29 of the Narcotic Drugs & Psychotropic 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Substances Act, 1985 (for short "the NDPS Act") and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine Rs.1,00,000/-.
2. The learned counsel for the applicant/appellant contended that the applicant is in custody since 11.01.2018 and till date he had undergone the sentence of six and half years, as against the total sentence of ten years. He further contended that the appeal is likely to take considerable time for its disposal, as such, the instant application may be allowed and the applicant, who had already undergone more than half of the sentence, be released on bail during the pendency of the instant appeal.
3. On the other hand, learned Senior Additional Advocate General contended that the applicant/appellant is not entitled to be released on bail during the pendency of the present appeal, as he has been convicted in a serious offence.
4. We have heard the learned counsel for the applicant/appellant as well as learned Senior Additional Advocate General and have also gone through the material available on record.
5. At this stage, it would be relevant to reproduce Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which reads as under:-
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"479. Maximum period for which undertrial prisoner can be detained. - (1) Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under law, he shall be released by the Court on bail:"
6. In Satender Kumar Antil Versus Central Bureau of Investigation & another, (2022) 10 Supreme Court Cases 51, after taking note of the provisions of Section 436A, Cr.P.C., the Hon'ble Apex Court held as under:-
"63. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and trial. We have already explained that the word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.
64. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offense, he shall be released by the court on his personal bond with or without sureties. The word 'shall' clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that 'bail is the rule and jail is an exception' coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the accused to be excluded....."4
7. The instant appeal is of the year 2022 and the same is not likely to be decided in near future and there is also nothing on record to suggest that the delay in deciding the appeal is attributable to the applicant/appellant. Therefore, in view of the facts and circumstances of the case, since the applicant has already undergone more than half of the maximum sentence imposed upon him by the learned Trial Court and keeping in view Section 479 of BNSS and also the aforesaid judgment of the Hon'ble Supreme Court, the substantive sentence imposed upon the applicant by the Trial Court, vide judgment of conviction and order of sentence dated 15.02.2022, passed by learned Special Judge, Sarkaghat, camp at Jogindernagar, District Mandi, H.P., shall remain suspended, till final disposal of the appeal, however, subject to the applicant's furnishing personal bonds in the sum of Rs.2,00,000/- with two sureties in the like amount to the satisfaction of learned Trial Court. On furnishing the requisite bail bonds, he be released forthwith, however, with the undertaking to appear before this Court as and when directed and in the event of the dismissal of the appeal, the applicant/appellant will surrender before the Court.
8. Be it stated that any expression of opinion given in this 5 order does not mean an expression of opinion on the merits of the case and the same has been given only for the purpose of deciding the present application. The application stands disposed of.
( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 30th August, 2024 (virender) Digitally signed by VIRENDER BAHADUR DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU= VIRENDER HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 3c5f9e29e91dda973d928ffd06d59832d2dd97b9e2898117bfa7 38990a0ea7ba, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= fed3018c26866cd3d598cb3749b3fb29d4abef4b84983689d027 BAHADUR cb645c9bb134, CN=VIRENDER BAHADUR Reason: I am the author of this document Location:
Date: 2024.08.30 17:43:09+05'30' Foxit PDF Reader Version: 2023.2.0