Showkat Ahmad Rather vs State of J&K

Mr. Mohammad Yaqoob Mir, J. (Oral) - Instant appeal has remained pending with effect from 13th December, 2013 for the reasons as

recorded from time to time in the interim proceedings. The appeal could not be heard on various dates. Today also due to paucity of time could

not be heard.

Learned counsel for the appellant submits that earlier he has moved two applications for grant of bail. The main plank of arguments, as

highlighted by the learned Senior Advocate, is that the total sentence as awarded against the appellant is seven years, he has already been in the jail

for three years and six months which would mean that he has served half of the sentence. On such count alone appellant deserves to be released

on bail. Supporting this submission has placed reliance on the judgment rendered by the Hon’ble Apex Court in the case of Thana Singh v.

Central Bureau of Narcotics reported in (2013) 2 SCC (Cri) 829 and (2013) 2 SCC 603.

In the reported case, the accused was convicted under Section 8 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act,

1985. The Hon’ble Apex Court observed that the accused has suffered imprisonment which is half of the maximum punishment provided for

the offence, any further deprivation of personal liberty would be violative of fundamental rights visualized by Article 21.

According to learned Dy. AG, appellant has committed a very heinous offence, he has been convicted and sentenced, such person does not

deserve any concession of bail. The appellant had earlier projected false grounds for release on bail. Learned Dy. AG has not been able to

convince the Court on the ground that when the accused has already suffered half of the sentence, why he should not be released on bail. Learned

Dy. AG, however, contended that this ground was never taken but this submission is not well founded as in Cr. MP No. 01/2015, in first para, it is

specifically mentioned that the accused has been sentenced to seven years rigorous imprisonment and has already served three and half years.

Be it as it may. Right to liberty is guaranteed under Article 21 of the Constitution. In the same background case of the appellant for suspension

of sentence and grant of bail has to be considered. Admittedly, appellant in connection with case FIR No. 73/2006 P/S Sumbal, under Section

306 and 498 RPC was arrested and thereafter while facing trial was released on bail. By that time he had already served one year of

imprisonment. Finally, the appellant was convicted vide judgment dated 26.11.2013 and sentenced to two years rigorous imprisonment and fine of

Rs. 5,000/- under Section 498 RPC and rigorous imprisonment for a period of seven years and fine of Rs. 10,000/- for the commission of offence

under Section 306 RPC with a further direction that all the sentences of imprisonment shall run concurrently. In default of payment of fine, the

convict has to undergo a simple imprisonment for a period of three months under the said Sections. On the date judgment has been rendered

appellant had been taken into custody so continues to be so till date.

Hearing of the appeal could not fructify for a period of over three and half years, obviously due to heavy schedule of the cases and also due to

the reasons as referred to in the interim orders recorded from time to time. The appellant deserves to be released on bail in view of the law laid

down by the Hon’ble Apex Court in the judgment referred to above. Para 4 is advantageous to be quoted:

Time and again, this Court has emphasized the need for speedy trial, particularly when the release of under trial on bail is restricted under the

provisions of the statute, like in the present case under Section 37 of the NDPS Act. While considering the question of grant of bail to an accused

facing trial under the NDPS Act in Supreme Court Legal Aid Committee v. Union of India this Court had observed that though some amount

of deprivation of personal liberty cannot be avoided in such cases, but if the period of deprivation of personal liberty cannot be avoided in such

cases, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 of the Constitution would receive a jolt.

It was further observed that after the accused person has suffered imprisonment, which is half of the maximum punishment provided for the

offence, any further deprivation of personal liberty would be violative of the fundamental right visualized by Article 21. We regret to note that

despite it all, there has not been visible improvement on this front"".

The law laid down by the Hon’ble Apex Court squarely covers prayer of the appellant for suspension of sentence and grant of bail having

already served half of the sentence as awarded against him. Therefore, application allowed. Sentence as awarded against the appellant is

suspended. He is directed to be released on bail provided he furnishes surety bond to the tune of Rs. 1,00,000 (rupees one lac) to the satisfaction

of Registrar Judicial and personal bond of like amount to the satisfaction of Superintendent concerned. However, the appellant shall ensure his

presence before this Court on each and every date of hearing except for just cause.

Both the applications shall stand disposed of.