Crl.W.P.No.1159 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Writ Petition No.1159 of 2008 Date of Decision: 20 - 3 - 2009 Gurmukh Singh .....Petitioner v. State of Haryaa and others .....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Sanjeev Manhas, Advocate for the petitioner. Mr.S.S.Mor, Sr. DAG, Haryana. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) On 25.2.2009, this Court has passed the following order:- “Gurmukh Singh son of Tehal Singh, petitioner, was convicted and sentenced by the Court of Judge, Special Court, Kaithal under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as `the Act') to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-. In default of payment of fine to further undergo rigorous imprisonment for two years. The petitioner was prosecuted in case FIR No. 27 dated 22.3.2000 registered at Police Station Guhla, District Kaithal, under Section 15 of the Act. Crl.W.P.No.1159 of 2008 [2] Petitioner has preferred Criminal Appeal No. 556-SB of 2002 against his conviction and sentence, which was dismissed by this Court on 23.7.2003. Case of the petitioner is that he has undergone seven years six months & 18 days of his actual sentence and he is entitled to be released from the custody as he has earned sufficient remissions and has completed his sentence. Notice of motion was issued in the present petition filed under Article 226 of the Constitution of India wherein it has been prayed that further detention of the petitioner in the jail is unwarranted. The respondents have filed reply that under Section 32A of the Act, there is a specific bar to the suspension or remission or commutation of sentence awarded under the Act. Therefore, the present petition is not maintainable and is liable to be dismissed. Along with the reply filed by the respondents, a letter issued by the Director General of Prisons, Haryana, (Annexure R1) has been annexed. It has been stated that opinion of Legal Remembrancer has been sought, who has opined that Section 32A of the Act creates a specific bar to the suspension or remission or commutation of sentence awarded under this Act. A question was raised before this Court in Ekka Ram v. State of Punjab etc. (Criminal Writ Petition No. 839 of 2004). It was stated that even though Section 32-A of the Act bar grant of remissions but the powers of Governor under Article 161 of Crl.W.P.No.1159 of 2008 [3] the Constitution of India are not curtailed and the sentence can be remitted or commuted by the Governor in view of the powers vested in him by the Constitution of India. The Ekka Ram's case was decided and it was held that convict therein under the Act will be entitled to remission. The decision of Ekka Ram's (supra) was made subject matter of Special Leave Petition and is pending before Hon'ble the Apex Court. Whether convicts under the Act are entitled to remissions granted under Article 161 of the Constitution of India? is another question which is pending for decision before Hon'ble the Apex Court. During pendency of Special Leave Petition, a number of petitions came to this Court seeking similar relief. This Court, in Surjan Singh v. State of Punjab (Criminal Writ Petition No. 1179 of 2006 decided on 22.2.2007) during the pendency of Special Leave Petition devised procedure for grant of bail to convicts under the Act who have completed sentence after the period of remissions is included. The workable solution noticed in Surjan Singh's case (supra), read as under:- 11. The workable solution for the interregnum has been effectively devised by another Learned Single Judge of this Court vide order dated November 8, 2006 passed in Crl. W.P. No.768 of 2005 (Ajaib Singh s/o Jit Singh v. State of Punjab & Ors.) wherein the petitioner, who was a similarly situated convict under the NDPS Crl.W.P.No.1159 of 2008 [4] Act, was ordered to be temporarily released 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.W.P.No.1159 of 2008 [5] (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 his residential address from time to time.” 12. Following the order dated November 8, 2006 passed by this Court, the operative part of which has been reproduced above, these petitions are also disposed of with a direction that the cases of the petitioners for their temporary release be considered and if they fulfill all the terms and conditions laid down by this Court in the order dated November 8, 2006, they be also temporarily released on bail on the same terms and conditions. The entire exercise shall be done by the concerned Superintendents of Jails as early as possible but not later than one month from today. Disposed of.” A Co-ordinate Bench of this Court in Sukhwinder Singh alias Titoo v. State of Punjab (Criminal Writ Petition No. 1157 of 2006 decided on 10.8.2007), issued general directions to avoid multiplicity of litigation. Relevant portion of Sukhwinder Singh's case (supra) read as under:- “Learned State counsel, however, points out a genuine difficulty being faced by the respondent authorities regarding implementation of the Crl.W.P.No.1159 of 2008 [6] directions contained in the above quoted order. It is stated that unless all the Jail Superintendents in the State of Punjab are directed to calculate the period of sentence undergone by the convicts by adding the period of remissions and thereafter a general direction to the learned Chief Judicial Magistrates in the State of Punjab to accept the bail bonds to their satisfaction, is issued, the hardship faced by the individual convicts as well as the authorities concerned cannot be over-come. 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 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 directions already 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 Crl.W.P.No.1159 of 2008 [7] 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. Registry is directed to send a copy of this order to all the Jail Superintendents and the learned CJMs in the State of Punjab. A copy of this order be supplied to learned State Counsel Dasti for information and compliance thereof.” The above said dictum of this Court has not been considered by the concerned Authorities in the State of Haryana. A number of petitions are coming up. A standard reply is being filed that in view of the opinion of Legal Remembrancer, nothing can be done. Various attempts made by this Court to consider the judgments mentioned above have not been responded to by the concerned authorities. The Inspector General Prisons is called upon to furnish an affidavit in this Court on or before 10.3.2009 taking into consideration judgments mentioned in this order. Before filing of affidavit, if necessary, the Inspector General Prisons may again consult the Legal Remembrancer of the State. Copy of this order be handed over to Mr. S.S. Mor, learned Senior Deputy Advocate General, Haryana, under the Crl.W.P.No.1159 of 2008 [8] signatures of Reader of this Court, for onward transmission and compliance.” Inspector General of Prisons, Haryana has filed a short affidavit which has been taken on record. In paragraph 4 of the affidavit, it has been stated as under:- “4. That it is correct that powers of Governor under Article 161 of the Constitution of India can not be curtailed by Section 32-A of the NDPS Act. It is further submitted that orders regarding remission issued by the Government of Haryana from time to time and by virtue of order dated 29.10.1996 of the Governor of Haryana State, remissions are granted to the convicts in Haryana under section (1) of section 432 of the Cr.P.C. And not under Article 161 of the Constitution of India. It is pertinent to mention here that in the orders, regarding remission granted by the Governor of Haryana categorically mentioned that “No remission will be granted to persons convicted under NDPS Act.” Hence, the above said directions of the Hon'ble High Court is not applicable to the remissions granted by the State of Haryana. Keepng in view the submissions made above, the said petition deserves to be dismissed.” To controvert the averments made in the affidavit, Mr.Sanjeev Manhas, counsel for the petitioner has relied upon orders passed in Criminal Misc.No.M-33757 of 2008, titled `Motia Bai v. State of Haryana and another', decided on 22.12.2008 and Criminal Writ Petition No.852 of 2007, titled `Balwinder Singh v. State of Haryana and others', decided on Crl.W.P.No.1159 of 2008 [9] 8.10.2007. I have perused both the orders. In those orders, counsel for the petitioner had made a statement that remissions under Article 161 of the Constitution of India has been granted by the Governor of Haryana. This fact was not controverted by counsel for the State. Here in the present case, it has been specifically stated by the Inspector General of Prisons, Haryana that no remission had been granted to persons under NDPS Act under Article 161 of the Constitution of India. State of Haryana, if so, advised may proceed for withdrawal of the relief granted in Motia Bai's case (supra) and Balwinder Singh's case (supra). In view of this, no directions can be issued. Present petition is dismissed. ( KANWALJIT SINGH AHLUWALIA ) March 20, 2009. JUDGE RC