Crl.M.No.M-18004 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.M.No.M-18004 of 2010 (O&M) Date of Decision:September 21, 2010 Sukhdev Singh Swarn Singh .....Petitioner v. The State of Punjab and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.A.S.Trikha, Advocate for the petitioner. Mr.K.D.Sachdeva, Additional A.G., Punjab. ...... RAM CHAND GUPTA, J.(Oral) The present petition has been filed under Section 482 Cr.P.C. for issuance of directions to respondents to verify the period of sentence undergone by the petitioner including remissions granted as per Punjab Jail Manual as well as under Article 161 of the Constitution of India and if after subtracting the period of parole, he has undergone the sentence awarded by the Court, then he be released temporarily on bail to the satisfaction of the concerned Chief Judicial Magistrate during the pendency of Special Leave Petition before Hon'ble Supreme Court against decision of this Court in Crl.W.P.No.839 of 2004 (Ekka Ram v. State of Punjab). I have heard learned counsel for the parties and have gone through the whole record carefully. Petitioner-accused was convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1 lac and in default of payment of fine to further undergo rigorous imprisonment for a period of one year in FIR No.50, dated 3.4.1998 under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be called as `NDPS Act'), Police Station Dharmkot, District Ferozepur, vide judgment dated 25.10.1999 passed by learned Special Judge, Ferozepur, and he is undergoing sentence in District Jail, Hoshiarpur. Crl.M.No.M-18004 of 2010 (O&M) -2- It has been contended by learned counsel for the petitioner that inspite of bar created under Section 32-A of the NDPS Act, the remissions granted by Government of Punjab, 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 made reference of judgment 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. It has also been stated that the said decision was challenged by State of Punjab by filing a Special Leave Petition before Hon'ble Supreme Court and however, the same is still pending. It has further been contended that similar controversy came before this Court in Surjan Singh v. State of Punjab and others in Crl.W.P.No.1179 of 2006, decided on 22.2.2007, wherein petitioner- accused was ordered to be temporarily released on bail subject to his fulfilling the following terms and conditions:- “(1) 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 on 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 the 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 Crl. W.P. No.839 of 2004. The convict concerned will be granted the benefit of remission as per the circulars issued by the Government of Punjab under Article 161, after his conviction. (2) The petitioner will remain on bail during the pendency of SLP No .2496 of 2006 in Hon'ble Supreme Court. If as per the judgment of the 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. Crl.M.No.M-18004 of 2010 (O&M) -3- (3) 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 Court vide order dated 10.8.2007 passed in Crl.W.P.No.1157 of 2007 titled as Sukhwinder Singh @ Titoo v. State of Punjab issued the following guidelines:- “ Having heard learned counsel for the parties and in continuation of the directions already issued vide order dated 22nd February 2007 and also to avoid the multiplicity of litigation, which would cause unnecessary burden to the convicts who are languishing in jails, it is further directed that all the jail Superintendent in the State of Punjab shall consider the cases of the convicts under the NDPS Act in the light of the direction already issued by this Court in Sujan Singh's case (supra) referred to above, and if upon addition of the period of remissions it is found that such convicts or anyone 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 Magistrate concerned for acceptance of the bail bonds to their satisfaction. The learned Chief Judicial Magistrate 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.” Hence, in view of this legal preposition, this Court is to see as to whether petitioner is entitled to be released on temporarily bail pending SLP in Ekka Ram's case (supra) before Hon'ble Supreme Court. As per reply filed on behalf of the respondents-State, it has been stated that petitioner has filed a wrong and incorrect custody certificate and has not filed the correct certificate issued by the respondents and that he had made amendment in the certificate as per his convenience. It is further contended that petitioner has not completed the prescribed sentence including remissions as per Surjan Singh's case (supra) and Sukhwinder Crl.M.No.M-18004 of 2010 (O&M) -4- Singh @ Titoo's case (supra) and hence his case was not sent to Chief Judicial Magistrate concerned for acceptance of bail bonds. Detail of the period of sentence undergone by the petitioner-convict, as per guidelines issued in Surjan Singh's case (supra) and Sukhwinder Singh @ Titoo's case (supra) has been given, according to which he has undergone total sentence minus parole period as five years five months and eleven days as on 23.7.2010. He has also earned remissions under Article 161 of the Constitution of India from time to time and the total remissions come to three years three months. Hence, he has undergone eight years eight months and eleven days of sentence as on 23.7.2010, i.e., as on today he has undergone about eight years and ten months of the sentence. Hence, even if remissions granted under Article 161 of the Constitution of India by Government of Punjab is taken into consideration, petitioner has not completed the sentence. Hence, in view of these facts, there is no merit in the present petition. The same is, hereby, dismissed. 21.9.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.