IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Misc. No. M-33449 of 2008
Date of Decision: December 18, 2008
Shish Ram
... Petitioner
Versus
State of Haryana and another.
... Respondents
CORAM: HON'BLE MR. JUSTICE S.D. ANAND.
Present : Mr. Varinder Singh Rana, Advocate,
for the petitioner.
S.D. Anand, J. (Oral)
Crl. Misc. Nos. 58924 & 58925 of 2008
Allowed, as prayed for.
Crl. Misc. No. M-33449 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. The 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,
Crl. Misc. No. M-33449 of 2008 2
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 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 fact. 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 &
Crl. Misc. No. M-33449 of 2008 3
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 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.
Crl. Misc. No. M-33449 of 2008 4
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 Annexure P/3.
December 18, 2008 (S.D. Anand) vkd Judge
