Ram Kishore vs State of Haryana

M.L. Koul, J.—The petitioner-convict is seeking the suspension of his sentence and grant of bail while invoking the powers of this Court within the provisions of Section 389 of the Code of Criminal Procedure, in a case under the N.D.P.S. Act, for which he has been sentenced for 10 years RI and to pay a fine of Rs. One Lakh, having held 20 Kgs of poppy husk in his possession which was recovered by the police. The sentence awarded to him is dated 7-2-1996. Inter alia, it is contended by the petitioner that his father has since died and has left behind his widow and three minor daughters aged 15, 11 and 6 years respectively and they are suffering badly in his absence in jail. In this regard the prosecution was directed to file the objections, to verify the veracity of the application moved on behalf of the convict for grant of bail and suspension of sentence. The objections filed by the respondent-State are placed on the record of the file.

Mr. V. K. Chaudhary, learned counsel for the petitioner is reported to be sick, by Mr. N. K. Gupta Advocate.

Heard Mr. N. K. Gupta, for the petitioner and Mr. Dhanda for the State.

In nut-shell, the prosecution contends that the convict-petitioner had first married to one Urmila Devi from two sons were born, one of his sons namely Ramesh is 21 years and the other son namely Mukesh is 14 years old. On Urmila''s death, the convict-petitioner married Urmila''s second sister and she has given birth to three daughters namely Rekha aged 18 years, already married, Anju 13 years old and Santosh 8 years old. Accordingly to the prosecution the family is living jointly and Ramesh is looking after the family affairs. There is no proof available on the file that actually Ramesh takes care of his step sisters. It is well known that in modern time no body takes care of his younger brothers and sisters especially the step sisters. Petitioner has left behind his wife and two minor daughters. Besides that it is found that the petitioner has remained in police and judicial custody from 1 -7-1994 to 6-1 -1995 as an under-trial and thereafter on conviction he is in jail from 7-2-1996 till date. In this way, the petitioner has been in regular detention for more than two years and with the remissions he has already undergone the sentence for more than 2 1/2 years.

The the possession of the petitioner was only 20 Kgs and there is no proof available on the file that he is a previous convict or is a regular smuggler of the Narcotics and bears a past history about the crime of any kind.

No doubt once the accused has been convicted for an offence under the N.D.P.S. Act and the sentence granted is 10 years RI, therefore, the Courts generally do not grant bail to such an accused-convict. In this regard I am motivated to refer my own judgment passed in Criminal Misc. No. 12165 of 1997 in Criminal Appeal No. 434-SB of 1997 entitled Bikar Singh v. State of Haryana, wherein it has been observed that Section 32-A of the N.D.P.S. Act, has only reference to Chapter 32-E (XXXII-E) of the Code of Criminal procedure, which relates to power of State/Central Government to grant suspension, remission, commutation of sentences. On the interpretation of the Section, it was found that this section does not control the power of the High Court to suspend the order appealed against and to release the appellant on bail. It is well founded by the interpretation of the said section that Section 32-A of the Act debars the State/Central Government to suspend or to commute the sentence. So far as this Court is concerned, it stands settled that in an appeal against the order of conviction pending in this Court, the bar created by Section 32-A of the Act, does not affect the powers of this Court and the Court has powers to grant bail.

However, as a matter of caution it has further been observed that although this Court is not debarred from suspending the sentence and granting bail to a convict but that power is to be exercised by this Court sparingly and that too in the particular circumstances of each case. As a rule, sentence awarded under the provisions of N.D.P.S. Act is not to be suspended unless the special and particular circumstances of each case are taken into consideration for such a discretion to be exercised by the Court.

Having regard to these observations of the Court and taking into consideration the peculiar circumstances of the case that the petitioner has already undergone more than 21/2 years of sentence and the poppy husk recovered from his possession was only 20 Kgs and the fact that the offence committed by the convict is the first one, I deem it proper that the sentence against the appellant-petitioner is suspended for a period of six months and he is ordered to be released on bail on his furnishing bail bonds in the sum of Rs. 40,000/-with one surety and personal recognizance bond in the like amount to the satisfaction of trial Court/ C.J.M., Jind.

However, the petitioner shall not seek the extension of the bail and shall surrender soon after the period of six months, is over,

This petition stands disposed of accordingly.