Criminal Misc. No.M-34446 of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.M-34446 of 2008
Date of decision : 24.12.2008
Daya Nand ....Petitioner
Versus
State of Haryana and others ...Respondents
CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. V.S.Rana, Advocate for the petitioner
S. D. ANAND, J.
Criminal Misc. No.60613 of 2008
Allowed as prayed for.
Criminal Misc. No.M-34446 of 2008
Notice of motion.
On the asking of the Court, Mr.S.S. Mor, Senior Deputy
Advocate General, Haryana, accepts notice on behalf of the State.
The petitioner is under incarceration following his conviction in
a case under the N.D.P.S. Act. A plea preferred by him for his premature
release was declined by the Competent Authority as he is undergoing
sentence in a case under the N.D.P.S. Act. The Competent Authority, in
support of that view, drew sustenance from the provisions of Section 32-A
of the N.D.P.S. Act.
It is common ground otherwise that the relevant controversy is
pending consideration at the hands of the Apex Court.
In support of the contention that the embargo indicated by the
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provisions of Section 32-A of the N.D.P.S. Act, does not affect the
jurisdictional powers of the Governor of the State to grant remission in
exercise of powers under Section 161 of the Constitution of India, the
learned counsel for the petitioner relies upon two judgments rendered by
this Court in Ekka Ram vs. State of Punjab in Criminal Writ Petition No.
839 of 2004 decided on 14.09.2005 and Baldev Singh vs. State of
Punjab in Criminal Writ Petition No. 79 of 2005 decided on 1.3.2005.
The judgment in Ekka Ram’s case (supra) is under challenge before the
Apex court in an SLP filed by the State of Punjab.
The learned State counsel does not controvert that proposition
on facts. The pure and simple plea raised on behalf of the petitioner is that
if the disposal of the SLP is delayed, even an ultimate favourable decision
would be of no use because the petitioner – prisoner would have
undergone the entire period of sentence by that time.
A similar eventuality was adjudicated upon by a Coordinate
Bench of this Court (Satish Kumar Mittal, J.) in Criminal Misc. No. 51171-M
of 2006 (Mahi Ram Vs. The Secretary & Financial Commissioner to
Government of Haryana and others) and the following order was passed on
08.11.2006:
“It is ordered that in the meanwhile, the petitioner be
temporarily released, if he fulfills the following terms and
conditions:
i) 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
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the Court, he shall be released temporarily on bail to the
satisfaction of the Chief Judicial Magistrate during the
pendency of Special Leave Petition filed by State of Punjab in
case Ekka Ram [SLP (Crl.) No. 2496 of 2006] arising from the
final judgment and order dated 14.09.2005 passed in Criminal
Writ Petition No. 839 of 2004. The convict concerned be
granted the benefit of remission as per the circulars issued by
Government of Punjab under Article 161, after his conviction.
ii) The petitioner will remain on bail during the
pendency of S.L.P. No. 2496 of 2006 in the Apex Court. If as
per the judgment of the Apex Court, benefit of remission under
Article 161 is not granted, the convict will surrender back in jail
for undergoing the unexpired period of sentence.
iii) 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.”
This petition involving facts, which are exactly similar to those
involved in Mahi Ram’s case (supra), shall stand disposed of in terms of
order passed in Mahi Ram’s case.
December 24 2008 (S.D. ANAND) Pka JUDGE