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1. The Hon'ble the Chief Justice Mr. B.N. Kirpal, (as he then was) of this Court sitting with Mr. R.K. Abichandani, J., on 18th August 1994, considering the rival submissions, referred four questions to the Larger Bench which are as under :-

[1] Whether the High Court can grant bail, parole or furlough to an accused convicted of an offence under Narcotics Drugs & Psychotropic Substances Act, during pendency of an appeal against the conviction and sentence or thereafter ?

[2] Whether High Court in exercise of its writ jurisdiction under Article 226 and 227 of the Constitution of India, can suspend the sentence by granting parole, furlough or bail to an accused convicted of an offence under TADA?

10. In case of Maktool Singh v/s State of Punjab, reported in [1999] 3 SCC 321, the Apex Court held that section 32A of the NDPS Act has taken away the powers of the Court to suspend the sentence passed on persons convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 [except the section 27] and sentence could not be suspended during the pendency of the appeal of such a convict.

11. In view of this decision, the question No.1 must be answered in negative, by stating that the High Court has no power to suspend the sentence by grant of bail, parole or furlough to an accused convicted of an offence under the NDPS Act during pendency of the appeal against conviction and sentence or thereafter.

28. In view of what is stated hereinabove, the High Court in exercise of its writ jurisdiction under Article 226 and 227 of the Constitution of India ordinarily cannot suspend the sentence by granting parole, furlough or bail to an accused convicted of an offence under the TADA Act.

Answered accordingly.

Question No.4 ::

Can High Court direct release of convict on parole undergoing sentence, whose appeal is pending before the Court?

29. The Parole can be granted to a convict under Rule 19 of the Prisons [Bombay Furlough and Parole] Rules, 1959, which reads as under :-

38. Once these two questions are answered as per para 28 of this judgment (Hon'ble B.C. Patel, J.) that the High Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India ordinarily cannot suspend the sentence by granting parole, furlough or bail to an accused convicted of an offence under the TADA Act, it requires little elaboration as to possibly what could be those exceptional or extraordinary cases warranting exercise of this power by the High Court in such matters.While referring these questions, a specific reference was made to the case of Usmanbhai Dawoodbhai, reported in AIR 1988 SC 922 and Kartar Singh reported in 1994(2) JT 423 by my Lord Hon'ble B.N. Kirpal, Chief Justice of this Court as he then was and Hon'ble R.K. Abichandani, J. So far as the decision in Usmanbhai Dawoodbhai's case (supra) is concerned, the contents of para 12 of the judgment as have been quoted in para 17 of this judgment (Hon'ble B.C. Patel, J.) show that the Apex Court had noted the statement which was made by Shri Poti and further that the statement as had been made must necessarily follow that a citizen can always move the High Court under Article 226 or 227 or the Supreme Court under Article 32 challenging the constitutional validity of the Act or its provisions on the ground that they offend against Articles 14, 21 and 22 or on the ground that a notification issued by the Central Government or the State Government under Section 9(1) of the Act constituting a Designated Court for any area or areas or for such case or class or group of cases as specified in the notification was a fraud on powers and thus constitutionally invalid, covers only the cases as mentioned above. However, it does not include the cases with regard to suspension of sentence for granting parole, furlough or bail to an accused convicted of an offence under TADA. In the other decision of the Supreme Court in Kartar Singh's case, i.e. reported in 1994 (2) JT 423 in para 388 (Hon'ble S.Ratnavel Pandian majority opinion) which has been quoted in para 25 of this judgment (Hon'ble B.C. Patel, J.), the Supreme Court has observed that if the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated, but at the same time, it cannot be said that the High Courts have no jurisdiction. It has been further observed with emphasis that the judicial discipline and Comity of the Courts require that the High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicted under the Special Act since the Supreme Court has jurisdiction to interfere and correct the orders of the High Court under Article 136 of the Constitution. In sub-para 16 of para 398 (Hon'ble S. Ratnavel Pandian majority opinion) of the Supreme Court judgment which has been quoted in para 26 of this judgment (Hon'ble B.C. Patel, J.), the Supreme Court while observing that it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and pass orders either way relating to the cases under the Act of 1987 has said that, that power should be exercised sparingly and that too only in rare and appropriate cases in extreme circumstances and at the same time it has also been added that, "But the judicial discipline and comity of Courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters." Therefore, the proposition admits of no controversy that so far as the writ jurisdiction of the High Courts under Article 226 and 227 of the Constitution to entertain such applications is concerned, the jurisdiction is there, it is not a closed domain altogether but the caution has been given with regard to exercise of the power and that it should be exercised sparingly and on the principle of judicial discipline and comity of the Courts, the High Court should refrain from exercising the extraordinary jurisdiction in such matters. In this decision of Kartar Singh (supra) the earlier decision in the case of Usmanbhai Dawoodbhai (supra) was also considered in para 161, 162 and para 372 thereof. It is, therefore, clear that the High Court has the jurisdiction to entertain such applications and suspend the sentence of accused convicted under TADA Act, but the question which has been referred is as to whether such exercise should be undertaken by the High Court under Article 226 in view of the observations made in the Supreme Court decision in Kartar Singh's case (supra) and Usmanbhai Dawoodbhai's case (supra). In my opinion, once the jurisdiction under Article 226 is there with the High Court to entertain such applications, the exercise of such jurisdiction may be undertaken by the High Court in appropriate cases only keeping in view the words of caution given by the Supreme Court in Kartar Singh's case (supra). Accordingly, there is no question of exercising this jurisdiction in normal course. The question, therefore, arises as to what are the limits for exercise of such jurisdiction? No doubt, such limits cannot be defined but it can certainly be said that, 'to reach injustice wherever it is and which can't be put to an end in normal course' should be the limit for exercise of such power. In the case of Dwarka Nath v. I.T. Officer, reported in AIR 1966 SC 81 in para 4, the Supreme Court with reference to scope of Art.226 had observed as under: