Crl.M.No.M-18789 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.M.No.M-18789 of 2010 (O&M) Date of Decision: November 9, 2010 Charanjit Singh .....Petitioner v. The State of Punjab and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.D.R.Singla, Advocate for the petitioner. Mr.Gazi Mohd., DAG, Punjab. .... RAM CHAND GUPTA, J.(Oral) The present petition filed under Section 482 Cr.P.C. is for directing respondent no.2 to release the petitioner as he has already completed the sentence and further to order regarding his release in view of order already passed by learned Chief Judicial Magistrate, Bhatinda. Reply has been filed by the respondent-State. I have heard learned counsel for the parties and have gone through the whole record carefully. Admitted facts are that petitioner-accused was convicted in FIR No.170 dated 6.12.2000 under Section 18 of the NDPS Act, registered at Police Station Sangat, District Bhatinda and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay fine of Rs.1.00 lac and in default of payment of fine to further undergo rigorous imprisonment for a period of six months. However, in appeal filed against the said judgment, the sentence was reduced from 12 years to 10 years while maintaining the amount of fine. It has been contended by learned counsel for the petitioner that he has already completed the sentence, as provided under the law, as he is entitled for the remissions granted by State of Punjab from time to time. It has also been contended that he is also entitled to be released on interim Crl.M.No.M-18789 of 2010 (O&M) -2- bail in view of decision of this Court in Ekka Ram v. State of Punjab and others, in Crl.W.P.No.839 of 2004, decided on 14.9.2005, However, per contra it has been contended by learned State counsel that petitioner is not entitled for remissions in view of bar created under Section 32-A of the NDPS Act. It is further contended that petitioner has not completed the sentence as per law. It has also been contended that though the case of the petitioner was recommended for release on temporary bail as per Ekka Ram's case and Sukhwinder Singh Titoo v. State of Punjab in Crl.Writ Petition No.1157 of 2006 decided on 10.8.2007 and however, as petitioner has failed to deposit the amount of fine, he could not be released. As per custody certificate placed on record on behalf of respondent-State, petitioner has undergone total sentence of 8 years 5 months and 13 days as on 15.6.2010 excluding the period of parole. Hence, he has undergone about eight years and ten months of sentence as on today and in view of the bar created under Section 32 of the NDPS Act, he is not entitled for remissions. However, in Ekka Ram's case following observations were made by this Court:- “On due consideration of rival submissions, it appears that Hon'ble the Apex Court in a three Judge Bench judgment reported in JT 2000 (Suppl.1) SC 449 (Dadu alias Tulsidas etc. versus State of Maharashtra etc.) in para No.15 has discussed the powers of the President and Governor of a State under Articles 72 and 161 of the Constitution, respectively. From the ratio of the discussion, it appears that the embargo under Section 32-A of the Act is applicable only to executive decisions under Sections 432 and 433 Cr.P.C. and it would not apply for the purpose of imposing any restriction on the powers of the President and Governors. As the impugned circular (Annexure P-2) has been issued also in exercise of the powers of the Governor, Punjab, under Article 161 of the Constitution, the aforesaid submissions of learned counsel for the petitioner appear to carry force and deserve consideration. Accordingly, the writ petition (being Crl.W.P.No.839 of Crl.M.No.M-18789 of 2010 (O&M) -3- 2004) is hereby allowed and it is held that writ petitioner Ekka Ram son of Milkhi Ram would also be entitled to get benefits in terms of the aforesaid circular. Thus, if the petitioner is found to be covered under the Special remission of the circular, he shall be released forthwith.” In Crl.W.P.No.768 of 2005 (Ajaib Singh s/o Jit Singh v. State of Punjab and others) decided on 8.11.2006, the following directions were issued 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 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.” This case was subsequently followed in Surjan Singh v. State of Punjab and other, Crl.Writ Petition No.1179 of 2006, decided on 22.2.2007, and Sukhwinder Singh @ Titoo's case (supra). In Sukhwinder Singh @ Titoo's case (supra), general interactions were issued Crl.M.No.M-18789 of 2010 (O&M) -4- by this Court as under:- “ Having heard learned counsel for the parties and in continuation of the directions issued vide order dated 22nd February, 2007, and also to avoid the multiplicity of litigation, which would cause unnecessary financial burden to the convicts who are languishing in jails, it is further directed that all the Jail Superintendents in the State of Punjab shall consider the cases of the convicts under the NDPS Act in the light of the direction issued by this Court in Surjan Singh's case (Supra), referred to above, and if upon addition of the period of remissions, it is found that such convicts or any one of them have completed the requisite period of sentence awarded to them by the Court, their cases for temporary release shall be forwarded to the learned Chief Judicial Magistrates concerned for acceptance of the bail bonds to their satisfaction. The learned Chief Judicial Magistrates concerned shall consider the acceptance of bail bonds in all such cases, irrespective of the fact that no specific direction in the individual case has been issued by this Court.” Though, the Special Leave Petition filed against the Ekka Ram's case by State of Punjab has since been dismissed by leaving the law point open, however, in view of the fact that law point as held in Ekka Ram's case (supra) has not been finalised by Hon'ble Apex Court, petitioner can be granted benefit of Sukhwinder Singh @ Titoo's case (supra) and he can be released temporarily on bail provided he deposit the amount of fine. However, as he has not deposited the amount of fine, he cannot be released temporarily on bail. 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.