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2015 DIGILAW 1045 (PNJ)

Jasdev Singh v. State of Punjab

2015-05-27

RAJ MOHAN SINGH

body2015
Raj Mohan Singh, J.:- 1. Applicant-appellant Jasdev Singh @ Jassa seeks suspension of sentence during pendency of the present appeal. 2. Applicant has been convicted under Section 22(b) NDPS Act 1985 and has been sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/-. In the event of default of payment of fine, he shall further undergo rigorous imprisonment for 1 year. 3. Appeal stands admitted and recovery of fine has been ordered to be stayed during pendency of this appeal vide order dated 31.10.2014. 4. Now applicant has prayed for suspension of sentence during the pendency of appeal on the ground that appeal is of the year 2014 and applicant has undergone period of about 4 years and 5 months of actual sentence out of total sentence of 10 years. 5. Learned counsel for the applicant relies upon Dalip Singh @ Deepa v. State of Punjab, 2010(2) RCR (Crl.) 566, (Full Bench) of this Court to contend even if Appellate Court has no powers to suspend the sentence during pendency of appeal in the absence of any provision to that effect in the Code, the same can be suspended in view of following principles laid down in aforesaid judgment:-- "(a) long pendency of the trial or an appeal after conviction would be a ground for consideration for grant of bail or suspension of sentence of an accused or a convict as the case may be in the spirit of Article 21 of the Constitution of India; (b) In the case of delay in conclusion of the trial the right is of consideration for release on bail and not an automatic right of grant of bail. In the consideration process for the grant of bail on the ground of delay in concluding the trial it shall have to be seen who was responsible for the delay. In case it is the accused who has delayed the trial no relief can be granted. In case of delay by the prosecution, which is oppressive or unwarranted, besides, affecting the right of an accused under-trial in terms of Article 21, remedial orders including grant of bail or fixing a time frame for the conclusion of the trial are to be passed. In case of delay by the prosecution, which is oppressive or unwarranted, besides, affecting the right of an accused under-trial in terms of Article 21, remedial orders including grant of bail or fixing a time frame for the conclusion of the trial are to be passed. (c) In the case of delay in the disposal of the appeal after an order of conviction, the rule of laying down a condition of undergoing three years or two years imprisonment post-conviction in the case of females for a life convict out of a period of five years or four years in the case of females is not absolute. The convict appellant may show by producing relevant materials including interim orders of the trial Court that the delay in the conclusion of the trial is not attributable to him. (d) While considering the case for release from custody on bail during trial or suspension of sentence pending an appeal the Court is also to consider:-- (i) the nature of the offence; (ii) the manner in which the offence has occurred; (iii) the role attributed to the accused or the appellant as the case may be seeking bail or suspension of his sentence; (iv) the nature of gravity or heinousness of the crime or cruel mode of its execution; (v) whether a bail earlier granted had been misused and other criminal cases, if any, pending against the accused or the convict or other cases where he has been convicted; (vi) the propensity and potentiality of the accused or the convict indulging in criminal activities while on bail; (vii) the likelihood of an accused in case of an under-trial or a convict prisoner after his conviction to abscond or being a proclaimed offender, besides, in case of an under-trial prisoner the likelihood of his interfering in the trial of the case by influencing the witnesses or tampering with the evidence. (viii) conduct of an accused or a convict while in jail and in the case of a convict whether he has misused the concession of parole or furlough; (ix) whether the concession of bail, parole or furlough earlier granted has been misused; These and other circumstances which are illustrative and not exhaustive are to be adverted to an taken into consideration at the time of consideration of an application seeking bail by an under-trial or suspension of sentence by a convict after his conviction. (e) In respect of devising means to prevent the accused or a convict to abscond the Court accepting the bail bonds may in a case where the prisoner is likely to abscond may impose strict conditions of furnishing heavy surety and number of sureties, besides, asking for respectables of the locality or area of the accused or convict to furnish surety not only with regard to misuse of the concession of bail or suspension of sentence but also of maintaining peace and good behaviour while at large and not indulging in criminal activities while at large. (f) We also gave serious thought on certain procedural aspects of bail applications. We feel that after giving our detailed judgment, clarifying the various aspects of rights of citizens under Art 21, the trial courts and the High Court may well get inundated with a large number of applications for bail. This will be a happy development. But some streamlining of hearing of bail applications is necessary. We would like to curb hearing of bail applications, to prevent multiple applications being filed by under-trials and convicts. We feel that repeated filing of applications for bail give rise to many difficulties. These tend to clog the courts, are often misused, raise unrealistic expectations among the under-trials and convicts which give rise to malpractice. Subsequent applications amount to a review of the previous order of dismissal of bail, which is not permissible in criminal cases. Therefore, we direct that under-trials and convicts shall get only one hearing for bail on merits and if they fail then, only one hearing for bail on the basis of long custody. (g) We would also like to re-iterate that the suggestion given by the Division Bench, in the reference order, to constitute a "Criminal Justice Monitoring Board" is a good way forward to ensure speedy trials. This should be seriously considered by the States of Punjab & Haryana and the Union Territory of Chandigarh, so that all the departments of the criminal justice system run in tandem with each like a well-oiled machine. This is the only way to ensure that citizens' right to speedy trials, enshrined in Article 21 of the Constitution of India, are fully realized and not ignored or violated. 1992(2) RCR (Crl.) 634; 2009(1) RCR (Criminal) 802: 2009(1) RAJ 648 and 2001(2) RCR (Civil) 346, relied." 6. This is the only way to ensure that citizens' right to speedy trials, enshrined in Article 21 of the Constitution of India, are fully realized and not ignored or violated. 1992(2) RCR (Crl.) 634; 2009(1) RCR (Criminal) 802: 2009(1) RAJ 648 and 2001(2) RCR (Civil) 346, relied." 6. Learned counsel further relies upon Daler Singh v. State of Punjab, 2007(1) RCR (Crl.) 316 wherein Division Bench of this Court framed guidelines for granting suspension of sentence in the cases arising out of NDPS Act. These guidelines are also reproduced here as under:-- "(1). Where the convict is sentenced for more than ten years for having in his conscious possession commercial quantity of contraband, he shall be entitled to bail if he has already undergone a total sentenced of six years, which must include atleast fifteen months after conviction. (2) Where the convict is sentenced for ten years for having in his conscious possession commercial quantity of the contraband, he shall be entitled to bail if he has already undergone a total sentence of four years, which must include atleast fifteen months after conviction. (3) Where the convict is sentenced for ten years for having in his conscious possession, merely marginally more than non-commercial quantity, as classified in the table, he shall be entitled to bail if he has already undergone a total sentence of three years, which must include atleast twelve months after conviction. (4) The convict who, according to the allegations, is not arrested at the spot and booked subsequently during the investigation of the case but his case is not covered by the offences punishable under Sections 25, 27-A and 29 of the Act, for which in any case the aforesaid clauses No. (i) to (iii) shall apply as the case may be, he shall be entitled to bail if he has already undergone a total sentence of two years, which must include atleast twelve months after conviction. (5) No bail should be granted to a proclaimed offender, absconder or the accused repeating the offence under the Act. (6) Foreign national who has been indicated under the Act and other traffickers who stand convicted for having in their possession extraordinary heavy quantity of contraband (like heroin, brown-sugar, charas etc.) shall not be entitled to the concession of bail. (5) No bail should be granted to a proclaimed offender, absconder or the accused repeating the offence under the Act. (6) Foreign national who has been indicated under the Act and other traffickers who stand convicted for having in their possession extraordinary heavy quantity of contraband (like heroin, brown-sugar, charas etc.) shall not be entitled to the concession of bail. (7) Convict who is sentenced for the commission of an offence punishable under Sections 31 and 31A of the Act shall not be entitled to be released on bail. (8) Principles enumerated above would, however, have no effect on the concession of bail, otherwise provided under the provisions of the Act or any other law for the time being in force. (9) These principles would also not affect the right of any convict to apply for interim suspension of sentence on account of any exceptional hardship." 7. Learned counsel for the appellant states that even if the allegations are objected in the background of commercial recovery, but trial Court has ultimately convicted the applicant-appellant for the offences punishable under Section 22(b) of NDPS Act reads as under:-- "Where the contravention involves quantity lesser than commercial quantity but greater than the small quantity, that rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to Rs. 100." 8. Learned counsel while relying upon guideline No. 2 of Daler Singh's case (supra) contends that the same relates to possession of commercial quantity of contraband and, therefore, even if sentence is of 10 years the case does not fall under commercial quantity of the contraband as offence alleged against the applicant is under Section 22(b) of the Act. 9. Learned counsel relies upon guideline No. 3 to contend that the applicant is entitled to bail after undergoing total sentence of 3 years which must include at least 12 months after conviction. Perusal of the aforesaid condition reveals that the same is applicable in the case where sentence is of 10 years and the recovered contraband is marginally more than non-commercial quantity. 10. Learned State counsel however submits that the applicant is not entitled to suspension of sentence as he was also involved in case bearing FIR No. 326 dated 15.12.2009 under Section 22(b) of the NDPS Act in which he was sentenced and appeal is pending. 10. Learned State counsel however submits that the applicant is not entitled to suspension of sentence as he was also involved in case bearing FIR No. 326 dated 15.12.2009 under Section 22(b) of the NDPS Act in which he was sentenced and appeal is pending. Guideline No. 5 is pressed into service to say that no bail should be granted in case of proclaimed offender, absconder or accused repeating the offence under the Act. 11. I have considered the arguments raised by both the sides. 12. According to Dalip Singh's case (supra) long pendency of trial or an appeal after conviction is a ground for consideration of suspension of sentence as the convict has a constitutional right in terms of Article 21of Constitution of India. Delay in disposal of appeal even though not an automatic right for the grant of suspension of sentence, but the same is relevant consideration to protect right of the accused in terms of Article 21 of Constitution of India, if delay is not attributable to the accused. The Hon'ble Supreme Court in Legal Aid Committee v. Union of India, 1994(3) RCR (Crl.) 639 issued directions in the context of release of persons who have undergone requisite period of sentence. 13. Division Bench of this Court in Tule Ram v. State of Haryana, 2005(4) RCR (Crl.) 319 has also highlighted the fact that delay in disposal of appeal is a relevant consideration for suspending the sentence if the delay is not attributable to the appellant. The Appellate Court may pass such orders to protect the right of speedy trial guaranteed to the convict under Article 21 of the Constitution of India. 14. I have considered the facts and circumstances of the aforesaid case. The factum of conviction in other case may have some impediment in grant of benefit of suspended sentence as per Daler Singh's case (supra) but at the same time the guidelines framed in Dalip Singh's case (supra) do not advance any such impediment. The criteria is only the delay in disposal of appeal and the delay is not attributable to the accused. 15. If the sentence has already been passed in a connected case then on passing of subsequent sentence the same has to run concurrently with such previous sentence. The criteria is only the delay in disposal of appeal and the delay is not attributable to the accused. 15. If the sentence has already been passed in a connected case then on passing of subsequent sentence the same has to run concurrently with such previous sentence. On this principle, reference can be made to Shashi Shekhar @ Neeraj @ Raju V. National Capital Territory of Delhi, 2015(3) Recent Apex Court Judgments (RAJ) 193. 16. Considering the aforesaid facts as argued by learned counsel for the appellant, this Court feels that out of total sentence of 10 years the applicant has undergone more than 4 years and 5 months. The appeal is of the year 2014 and would take substantial time to come up for final hearing. 17. In view of aforesaid, without expressing anything on merits, remaining sentence of the applicant-appellant Jasdev Singh @ Jassa is ordered to be suspended subject to his furnishing bail bonds to the satisfaction of Chief Judicial Magistrate, Moga. 18. Nothing expressed hereinabove would be construed to be an expression of any opinion on merits of the case. 19. Application stands disposed of.