Punjab-Haryana High Court
Radhey Sham vs The State Of Haryana And Others on 9 November, 2010
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
Crl.M.No.M-6006 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl.M.No.M-6006 of 2010 (O&M)
Date of Decision: November 9, 2010
Radhey Sham
.....Petitioner
v.
The State of Haryana and others
.....Respondents
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.K.L.Suneja, Advocate
for the petitioner.
Mr.P.M.Anand, Addl.A.G., Haryana.
......
RAM CHAND GUPTA, J.
1. The present petition has been filed under Section 482 of the Code of Criminal Procedure (hereinafter to be referred as `Cr.P.C.') to direct respondent no3 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 paragraphs 633-A, 635, 639, 644 of Punjab Jail Manual and under Article 161 of the Constitution of India/ periods 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 the case of the petitioner that he was convicted in FIR No.451 dated 21.8.1994 under Section 18 of the NDPS Act, at Police Station Sadar, Karnal, by learned Additional Sessions Judge, Karnal, vide judgment dated 13.9.1999 and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of Crl.M.No.M-6006 of 2010 (O&M) -2- one year. Appeal filed by the petitioner against the said judgment was dismissed by this Court and, however, the sentence in default of payment of fine was reduced to six months.
3. Reply has been filed by the respondent-State.
4. I have heard learned counsel for the parties and have gone through the whole record carefully.
5. It has been contended by learned counsel for the petitioner that he had already undergone 10 years 6 months and 6 days of sentence as on 15.12.2009 excluding the period of parole and furlough, availed by him as per custody certificate, Annexure P2. 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. 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.
6. 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) 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 Crl.M.No.M-6006 of 2010 (O&M) -3- 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 remissions under Article 161 is not granted the convict will surrender back in jail for undergoing the unexpired period of sentence.
(iii) At the time of release on bail, the petitioner will give an undertaking that he will not leave the country without prior permission of the Court and will keep peace and will continue informing the Chief Judicial Magistrate concerned of his residential address from time to time."
7. Learned counsel also placed reliance upon another decision of this Court in Krishan and others v. State of Haryana and others, Crl.M.No.M-63825 of 2006. On the same point he has also placed reliance upon Dara Singh v. State of Haryana, in Crl. M.No.M-10966 of 2008 decided on 29.9.2008.
8. It is further contended that case of present petitioner is similar to that of Mahi Ram's case (supra) as well as Dara Singh's case (supra) as he has already undergone seven years, three months and twenty-nine days of sentence as on 15.12.2009 excluding parole and furlough and if the remissions granted under Article 161 of the Constitution of India from time to time by government of Haryana are included, he has already completed the sentence and hence he becomes entitled for release.
9. On the other hand it has been contended by learned counsel for the respondents-State that petitioner has undergone only seven years three months and twenty-nine days of sentence minus parole and furlough as on 15.12.2009. It is further contended that in view of bar created by Section 32-A of the NDPS Act for suspension, remission or commutation of sentence awarded under the Act, no remission can be granted to the petitioner-accused. It is further submitted that vide various orders regarding Crl.M.No.M-6006 of 2010 (O&M) -4- remissions issued by Governor of Haryana from time to time, remission was granted to the convicts in Haryana State under Section 432 (1) of the Code of Criminal Procedure and not under Article 161 of the Constitution of India and that it has also been mentioned in the orders that no remission would be granted to persons convicted under NDPS Act. Hence, it is contended that the premature release policy of Haryana Government for convicts under the NDPS Act is not on similar footings as that of State of Punjab and hence, it is contended that petitioner cannot get any benefit of the decision in Ekka Ram's case (supra) or Sukhwinder Singh alias Titoo v. State of Punjab in Criminal Writ Petition No.1157 of 2006 decided on 10.8.2007. It is further contended that a coordinate Bench of this Court has dismissed a similar petition on 20.3.2009, i.e. Crl.M.No.1159 of 2008 titled Gurmukh Singh v. State of Haryana and others.
10. It is pertinent to reproduce Section 32-A of the NDPS Act, which was inserted by Act No.2 of 1989 w.e.f. 29.5.1989, which reads as under:
"32A. No suspension, remission or commutation in any sentence awarded under this Act.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 to 1974) or any other law for the time being in force but subject to the provisions of Section 33, no sentence awarded under this Act (other than section 27) shall be suspended or remitted or commuted."
11. The constitutional validity of the said provision was challenged before Hon'ble Apex Court in Dadu @ Tulsidas v. State of Maharashtra 2000(4) RCR (Criminal) 275. However, Hon'ble Apex Court held that the Section in so far as it takes away right of the executive to suspend, remit or compute the sentence is valid and intra vires of the Constitution of India. The relevant paragraph reads as under:-
"15.--------The distinction of the convicts under the Act and under other statutes, in so far as it relates to the exercise of the Executive Powers under Sections 432 and 433 of the Code is concerned, cannot be termed to either arbitrary or discriminatory being violative of Article 14 of the Constitution. Such deprivation of the Executive can also not be stretched to Crl.M.No.M-6006 of 2010 (O&M) -5- hold that the right to life of a person has been taken away except according to the procedure established by law. It is not contended on behalf of the petitioners that the procedure prescribed under the Act for holding the trial is not reasonable, fair and just. The offending Section, in so far as it relates to the Executive in the matter of suspension, remission and commutation of sentence, after conviction, does not, in any way, encroach upon the personal liberty of the convict tried fairly and sentenced under the Act. The procedure prescribed for holding the trial under the Act cannot be termed to be arbitrary, whimsical or fanciful. There is, therefore, no vice of unconstitutionality in the Section in so far as it takes away the powers of the Executive conferred upon it under Sections 432 and 433 of the Code, to suspend, remit or commute the sentence of a convict under the Act."
12. When similar matter came up before this Court in Gurmukh Singh's case (supra), affidavit was given by Inspector General of Prisons, Haryana, before a coordinate Bench of this Court that remissions have been granted to convicts in the State of Haryana under Section 432(1) of the Cr.P.C. and not under Article 161 of the Constitution of India and that it has also been specifically mentioned that no remission would be granted to persons convicted under NDPS Act.
13. Learned counsel for the petitioner has failed to show this Court any of the circular issued by Governor of Haryana under Article 161 of the Constitution of India granting remission of which benefit has not been given to the petitioner.
14. It may also be mentioned here that Special Leave Petition filed by State of Punjab in Ekka Ram's case (supra) has been dismissed by Hon'ble Apex Court vide order dated 27.8.2010, passed in SLP(Crl.) No.2496 of 2006, while keeping the law point open.
15. However, as already discussed above, premature release policy of the Government of Haryana is not similar to that of State of Punjab and as no remission has been granted by Government of Haryana to convicts under NDPS Act under Article 161 of the Constitution of India, benefit of decision in Ekka Ram's case (supra) or Sukhwinder Singh alias Titoo's Crl.M.No.M-6006 of 2010 (O&M) -6- case (supra) cannot be given to the petitioner-accused.
16. As per reply filed by the respondent-State and even as per custody certificate, Annexure P2, placed on record by the petitioner, he has undergone total sentence of seven years seven months and seventeen days as on 2.4.2010 minus parole and furlough availed by him. Hence, petitioner has not undergone the awarded sentence of ten years rigorous imprisonment.
17. In view of these facts and in view of above discussion, Ekka Ram's case (supra), or Sukhwinder Singh alias Titoo's case (supra) are not applicable in the case of State of Haryana. Hence, no order can be passed for premature release of present petitioner-accused in this case.
18. More over, no Rule or instruction can be said to be validly issued, if the same is not in accordance with the statutory provisions. Hence, even if an instruction has been issued which is violative of Section 32-A of the NDPS Act, no benefit of the same can be granted to the petitioner- convict. He has not undergone the entire period of sentence awarded, as per law.
19. Hence, in view of these facts, there is no merit in the present petition. The same is, hereby, dismissed.
9.11.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.