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TMI Blog2006 (12) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that he has by now already undergone more than seven years of his sentence out of the awarded substantive sentence of 12 years and that besides that the appeal is not likely to be heard in near future. 3. Not only the present appeal but also a large number of other appeals filed by the convicts under the Act which are not likely to be taken up in near future, has attracted our attention and therefore, we are framing certain guidelines/policy for the grant of bail where the appeals against the conviction under the Act filed in this Court cannot be heard within a reasonable time. 4. We have heard Mr. K.S.Dhaliwal, learned counsel for the applicant-appellant and Mr. K.S.Boparai, Additional Advocate General, Punjab assisted by Mr. M.S.Sidhu, Senior Deputy Advocate General, Punjab and have also sought the assistance of Advocate General, Haryana, Senior Standing Counsel, Union of India and Senior Standing Counsel, Union Territory, Chandigarh on the point. Consequently, Mr. H.S.Hooda, learned Advocate General, Haryana, assisted by Mr. Siddharth Batra, AAG Haryana, Mr. RS Rai, Senior Standing Counsel, U.T. Chandigarh and Mr. D.D.Sharma, Standing Counsel, Union of India h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to make the punishment harsher and stringent, two sections i.e. 32-A and 36-B were added with regard to the suspension of sentence during the appeal. Chapters No. XXIX and XXX of the Code of Criminal Procedure 1973 were made applicable to the appeals through Section 36-B of the Act which reads as under : Appeal and revision- The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973, on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Sessions trying cases within the local limits of the jurisdiction of the High Court 8. Section 389 Code of Criminal Procedure dealing with the provisions of suspension of sentence during appeal was covered under Chapter XXIX but these powers vested in the Appellate Court regarding the suspension of sentence were taken away by Section 32-A of the Act inserted by the same Act No. 2 of 1989 which reads as under :- 32-A. No suspension, remission or commutation in any sentence awarded under this Act- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of criminal justice. There is no doubt that the right of appeal is the creature of a statute and when conferred a substantive right. Providing a right of appeal but totally disarming the court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Article 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits atleast in many High Courts. As the present is not the occasion to dilate on the causes for such delay, we restrain ourselves from that exercise. In this view of the matter, the appellate powers of the Court cannot be denuded by Executive or judicial process. 12. While taking serious note of this stringent law, curtailing the powers of the Appellate Court to suspend the sentence, the Apex Court after dealing with many precedents further observed as under :- 24. Judged from any angle, the Section in so far as it completely debars the appellate courts from the powers to suspend the sentence awarded to a convict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fact that the Apex Court in Brahmajeetsingh Sharma's case (supra) was dealing with a provision which related to grant of bail during trial and not with regard to grant of bail post-conviction. We fail to see how the judgment of the Apex Court would help us to conclude that the law as enunciated by the Apex Court in relation to Maharashtra Control of Organised Crime Act, 1999 would be applicable to the appeals filed against conviction under the NDPS Act. Section 37 of the NDPS Act will have to be applied differently when one is dealing with a bail application filed pending trial as against one's filed in appeals. What the Apex Court in Ranjit Singh Brahmajeetsingh Sharma's case (supra) has laid down are the guidelines for dealing with the bail applications during trial but these cannot be of any assistance regarding the post-trial stage where the accused already stands convicted. 15. The Full Bench while dealing with the matter and keeping in view the magnitude of the menace, observed that in view of this that a strict interpretation will have to be placed to the effect that the Act, as presently framed, does not provide for any post conviction suspension of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay in disposal of the criminal appeals pending in the High Courts is a matter of serious concern. We have, therefore, called upon the Additional Registrar (Judicial) of this Court to give us in writing a year wise statement of all pending Single Bench and Division Bench appeals under the Act against the conviction upto date. As per the information supplied to us, 3931 Single Bench appeals are pending in this Court for disposal. Out of the said pendency in 806 appeals, the appellants (convicts) are in custody. 1268 Single Bench appeals are on Board for final hearing, out of which 510 appellants are in custody. 18. We have also been informed by the Additional Registrar (Judicial) that 219 Division Bench appeals under the Act are pending in this Court and in almost all the appeals, the convicts are in custody. 19. We have also come across many cases which have been listed for final hearing but could not be heard due to paucity of time and other unavoidable reasons and for the fault not attributable to the accused. It is this alarming situation that needs our serious attention. It is the plight of such prisoners that we must address ourselves to. In this background Mr. K.S. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , pointed out that the Full Bench had in terms held that bail in narcotics matters after conviction could not be granted. The learned counsel is broadly right in his assertion, but paragraph 13 quoted above, clearly makes an exception where the disposal of the appeal is likely to be delayed, and where there is no possibility of the same being heard in the near future. This is a matter which has to be heard by a Division Bench, we are of the opinion that keeping in view the present situation, the possibility of this appeal being heard in the foreseeable future is very remote as appeals of the years prior to the year 2000 are presently being heard. We accordingly allow this Crl. Misc. and direct that applicant-appellant Shinder Singh shall be released on bail to the satisfaction of the Chief Judicial Magistrate, Mansa. We also direct that the recovery of fine shall remain stayed during the pendency of the appeal. Sd/- H.S.Bedi Acting Chief Justice Sd/- Ranjit Singh April 18, 2006. Judge 22. Mr. Dhaliwal also relies upon another order dated 22.5.2005 passed in Criminal Appeal No. 836-DB of 2003 passed by a Division Bench of this Court regarding suspension of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d their individual view point. 25. While dealing with the question of releasing a convict on bail in a case where he was sentenced to life imprisonment for an offence under section 302 of Indian Penal Code, the Hon'ble Apex Court in Kashmir Singh v. State of Punjab, AIR 1977 (SC) 2147 observed as under :- It would, indeed, be travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified ? Would it be just at all for the Court to tell a person, We have admitted your appeal because we think you have a prima facie case, but unfortunately, we have no time to hear your appeal for quite a few years, and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent ? What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact, happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal was taken up for hearing. Would a judge not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Article 21 appear to be violated. It is because of this that we have felt that after the accused persons have suffered a substantial part of the punishment awarded for the offence, then even after filing of the appeals, any further deprivation of personal liberty would be violative of the fundamental right visualized by Article 21' which has to be telescoped with the right guaranteed by Article 14, which also promises justness, fairness and reasonableness in procedural matters. In a latest judgment rendered in Salem Advocates Bar Association, Tamil Nadu v. Union of India, 2005(3) RCR(Civil) 530 (SC) : 2005 (3) Civil Court Cases 420 (SC), the Apex Court while dealing with the issue of disposing of the appeals under different Acts including the NDPS Act laid certain guidelines for the Courts to make an endeavour to dispose of the appeals within a fixed period by putting the cases in different tracks. The same are reproduced as under :- Criminal Appeals should be classified based on offence, sentence and whether the accused is on bail or in jail. Capital punishment cases, rape, sexual offences, dowry death cases should be kept in Track I. Other cases where the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Act and other traffickers who stand convicted for having in their possession extra ordinary heavy quantity of contraband (like heroine, brown-sugar, charas etc.) shall not be entitled to the concession of bail as extending the said concession to such like convicts, in our view, would certainly be against the very spirit of the 'Act'. 31. Similarly a convict who is sentenced for the commission of an offence punishable under section 31 and 31A of the Act shall not be entitled to be released on bail by virtue of this order. 32. The 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. At the same time these principles would also not affect the right of any convict to apply for interim suspension of sentence on account of any exceptional hardship, which shall be dealt with according to the facts of the each individual case, nor shall it affect the right of convict to seek bail on the merits of case. 33. In our view, listing of an appeal on Board, of a particular Bench, should not be an impediment for exercise of the concession of bail. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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