1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.520 OF 2008 IN CRIMINAL APPEAL NO.586 OF 2005 Bankim Rasiklal Shah ..Applicant V/s. The Union of India & ors ..Opponents Mr.Naveen Chomal, Advocate, for applicant Mr.D.N.Salvi with Mr.H.V.Mehta, Advocate, for the respondent Nos.1 and 2 Mrs.Usha Kejariwal, A.P.P, for the State CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 18TH JUNE, 2008 P.C. . The applicant has been convicted for an offence punishable under Section 20(b)(ii)(c) of the N.D.P.S.Act and sentenced to suffer imprisonment of 14 years and to pay Rs.2,00,000/- in default to suffer further R.I for two years. The applicant has suffered about six and half years imprisonment. Against his conviction the applicant has preferred this appeal before this Court being Criminal Appeal No.586 2 of 2005 which has been admitted and is pending. An application for bail was taken out which was not pressed as can be seen from the Order of this Court dated 18th July, 2006. 2. From the record we find that thereafter, Criminal Application No.1207 of 2007 was moved at the instance of the applicant on which this Court had passed an order dated 1st October, 2007. The limited prayer made before this Court was that the applicant be treated in Harkisandas Hospital at his own risk and costs. Application was allowed and he was allowed to be treated at the said hospital on certain terms & conditions set out therein including the expenses related to travel and day to day expenses of the escorts and security. Thereafter another application for bail as also for modification of the Order passed in Criminal Application No.1118/2007, being Criminal Application No.1207/2007 has been taken out and is pending. 3. Petitioner then filed Criminal Writ Petition No.513 of 2008. We directed the learned counsel for the petitioner to produce before us a copy of the said Writ Petition. We find that there is no averment 3 that the petitioner was allowed to be treated at Harkisandas Hospital pursuant to the Order passed by this Court dated 1st October, 2007 and that the petitioner had applied for variation of that order which is pending. In terms of assignment of work by this Court Criminal Appeals are heard by one Bench and Criminal Writ Petition by another Bench. 4. This Court heard the parties by an order dated 29th April, 2008 and granted parole on the ground that the petitioner requires chemotherapy. The Court apparently was not aware of the previous order. The Court further observed that Criminal Appeal No.586 of 2005 is pending in this Court. Normal course for seeking relief of release for the petitioner is to file bail application. That Writ Petition was disposed of. 5. Subsequent to that order the applicant herein has filed this Criminal Application No.520 of 2008. By this application what the applicant prays is that he be granted bail on humanitarian consideration. When the matter came up the learned Bench of this 4 Court considering the order of 29th April, 2008 passed by the Division Bench directed that the petitioner be examined at Tata Memorial Hospital and the report be forwarded to this Court. On 20th May, 2008 this Court noted the report forwarded indicates that certain further tests are required to be carried out. As such parole already granted to the applicant was extended till 13th June, 2008. The matter came up before the Court on 13th June, 2008 and parole was extended till 17th June, 2008 and the parties were heard and the matter was kept for orders today. 6. The learned counsel on behalf of the applicant submits that this Court has a power to release the applicant on bail. On behalf of the respondents the learned counsel submits that insofar as bail is concerned, the provisions of Section 37 of the N.D.P.S.Act would be applicable and the petitioner must make out a case within the parameters of the said provisions. It is submitted that no such case is made out. It is further submitted that considering the law, the application for parole can be considered but that will have to be granted by the authority so competent and on conditions that may be 5 imposed. 7. The applicant is suffering imprisonment till his release on parole. The offence was committed in the Union Territory of Dadra & Nagar Haveli, Silvassa. From the record we find that the petitioner in the past was released on parole. In DADU ALIAS TULSIDAS Versus STATE OF MAHARASHTRA, (2000) 8 Supreme Court Cases 437, the constitutional validity of Section 32-A of the N.D.P.S.Act was in issue. The Supreme Court held that part of the Section is unconstitutional as it is deprived the Court of considering an application for bail. The Supreme Court has further observed in paragraph 27 that is open to the Court to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act. Section 37 of the Act lays down :- (i) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Therefore, it is clear that there is a power to the Court even in a case 6 of conviction under the N.D.P.S.Act to consider application for bail. That however must satisfy the predicates of Section 37(1)(b)(2). In the instant case, application of the applicant for bail is not on the ground that there are reasonable grounds for believing that the applicant is innocent. It will though not be open to this Court to grant bail. Granting of bail to the applicant whether temporary or permanent has to be considered on the same touch stone. If on hearing of the bail application the Court would not on material available grant bail, merely because the applicant applies for temporary bail cannot result in non-consideration of the provisions of Section 37 (1)(b)(2). The Court will have to apply the same tests, as that is the mandate of law. 8. The learned counsel further invited our attention to the Judgment of the Supreme Court in MANSINGH Versus UNION OF INDIA, (2006) 1 Supreme Court Cases (Cri) 279 to contend that as the appellant had undergone a substantial term of the sentence he should be released on bail. On perusal of said Judgment we find that was decided in the facts of that case. No question of law has been 7 decided. All that the learned Supreme Court has set out in that case is, that the appellant had suffered seven years of imprisonment. Appellant there was convicted for ten years and as there was no possibility of an early decision bail was granted. In the instant case, the appellant is convicted for 14 years and he has undergone more than six and half years. Even assuming that the Judgment cited supra has to be considered the applicant does not comply with the test of having completed substantial period of sentence. 9. What remains therefore, is the issue of whether the applicant is entitled to parole. At one point of time the view was that once the matter is pending before the Court, parole cannot be granted. The issue in our opinion, is covered by Judgment of this Court in S. Sant Singh v. Secretary, Home Department, Govt. of Maharashtra, Mantralaya, Mumbai & ors, reported in 2006 CRI.L.J. 1515. This Court has taken a view that even, if an appeal is pending, it is open to the competent authority to grant parole under the Prisons Act. In other words, therefore, the competent authority under the relevant rules has power to grant parole. Our attention has also been 8 invited to the Judgment of the Supreme Court in STATE OF MAHARASHTRA AND ANOTHER Versus SURESH PANDURANG DARVAKAR, (2006) 4 Supreme Court Cases 776. In that case it appears the learned single Judge has granted furlough. In appeal preferred by the State the learned Supreme Court was pleased to hold that granting furlough requires that the rules have to be considered by the competent authority whilst grinding furlough and the High Court in such circumstances should not exercise its jurisdiction. 10. On behalf of the applicant the learned counsel has invited our attention to certain observations made in the Judgment in S. Sant Singh v. Secretary, Home Department, Govt. of Maharashtra, Mantralaya, Mumbai & ors. In our opinion, the issue of grant of parole considering the language of the rule, necessarily does not mean only in those cases were some relative of the applicant is not well. It can also in certain cases cover the convict himself. As for example if medical facilities are not available in the Government hospital and applicant may have to be given treatment in such other 9 hospital. At any rate we need not conclude the issue. Before us is only an application for bail. We find from the facts of the application that this would not be a fit case to grant bail. 11. It is no doubt true that the applicant is suffering from cancer and he has been advised medical treatment. The earlier Division Bench of this Court had directed the applicant to be treated but under police escort. That order of this Court stands and has not been reversed by the Supreme Court nor has been recalled by this Court. Under these circumstances, we see no reason as to why the applicant should not undergo treatment in terms of the order of this Court dated 1st October, 2007. The applicant will have to surrender. He will have to apply to the competent authority for parole or to apply in terms of the order of this Court dated 1st October, 2007. 12. On behalf of the applicant the learned counsel states that the applicant has been admitted in hospital on 18th June, 2008. The learned counsel invited our attention to the order dated 17th June, 2008. We are informed that he was advised to take rest. Considering 10 the Medical Certificate, we are of the opinion that as the applicant is already admitted in the hospital the treatment presently can be continued. The applicant however, to surrender to Vadodra Jail by 30th June, 2008. Further treatment would be subject to the order passed by this Court in terms of the order dated 1st October, 2007. 13. It is open to the applicant independently to apply for parole and that can be considered by the competent authority. If parole is granted then the order of this Court dated 1st October, 2007 will not stand in the way of the applicant and it would be subject to order passed in the parole application. 14. We may also note that the applicant had taken out Criminal Application No.1207 of 2007 in Criminal Appeal No.586 of 2005. That application is for release on temporary bail and for further directions to direct Harkisandas Hospital & Research Centre, Charni Road, Mumbai to furnish status report and for further directions to remove police guard. Though, this application was pending, Writ Petition No.513 of 2008 was filed in which a prayer for relase of petitioner was 11 made. It was not disclosed that Criminal Application No.1207 of 2007 was pending in this Court. Therefore, it is clear that the applicant has been supressing material facts from this Court. This would normally disentitle him to get any relief from this Court. However, considering the applicant is suffering from cancer as opined by the medical authorities and is already admitted for chemotherapy, we continue the parole till 29th June, 2008. The appellant to surrender to Vadodra Jail by 30th June, 2008. 15. With the above observations, application is disposed of. (F.I.REBELLO, J.) (K.U.CHANDIWAL, J.)