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Judgment
Mr. D.H. Waghela, J.—RULE. Learned A.P.P. waives service for the respondents. The sister of the convict, who is convicted of the offences punishable under Sections 8 (c), 20(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the NDPS Act") and sentenced to rigorous imprisonment for 10 years and fine of rupees one lac, has made this application for temporary release for 30 days of the convict on the ground that her son is getting married on 25.11.2011 and the presence of the convict is absolutely necessary. In view of urgency of the matter and seriousness of the offences for which the convict is convicted, the Court had to adjourn the hearing from yesterday to today to grant sufficient opportunity to learned A.P.P. to oppose the application on all available factual and legal grounds. He, however, could not dispute the averment that the ceremony of married was to be held on 25/ 26.11.2011. It was also not controverted that the convict was the only brother among three sisters and his presence was required in the ceremony as maternal uncle of the bride.
Learned A.P.P., however, vehemently argued that in the case of conviction under special statute, restrictive provisions of the NDPS Act, particularly Section 37-A, were required to be fully applied and the convict must not be given a chance to abscond while he has not completed the sentence and not paid the fine. Learned A.P.P. relied upon three Judge bench decision of the Supreme Court in Dadu @ Tulsidas Vs. State of Maharashtra, , wherein pertinent observations quoted hereunder were relevant :-
Holding Section 32-A as void insofar as it takes away the right of the Courts to suspend the sentence awarded to a convict under the Act, would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the Courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed u/s 37 of the Act.
It is, however, also observed in the same judgment in para 11 that :-
It is thus clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of Section 32-A of the Act. Notwithstanding the provisions of the offending Section, a convict is entitled to parole, subject however, to the conditions governing the grant of it under the statute, if any, or the jail manual or the Government instructions....
Learned A.P.P. also relied upon recent judgment of the Apex Court in N.R. Mon Vs. Md. Nasimuddin, to point out that since the High Court had not kept in view the provisions of Section 37 of the NDPS Act, the grant of bail was held to be unsustainable. Learned A.P.P. also relied upon later judgment of the Apex Court in Union of India (UOI) Vs. Rattan Mallik @ Habul, to emphasis that when conviction is for offences under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, these provisions cannot be ignored while dealing with such an application. Arguing on that basis, learned A.P.P. Mr. Rawal submitted that the express provisions of Section 37 of the NDPS Act required not only notice to the Public Prosecutor but satisfaction of the Court that there were reasonable grounds to believe that the convict is not guilty of such offence and that he is not likely to commit any offence while on bail.
As against the above submission, learned Counsel Ms. K.D. Parmar, appearing for the applicant by way of legal aid, placed on record number of orders of this Court wherein parole or temporary bail was granted to the convict with stricter conditions. Upon the papers of the appeal of the convict, i.e. Criminal Appeal No. 271 of 2009, being called for perusal of the Court, learned Counsel Mr. R.M. Agarwal, appearing for the convict in the appeal, further submitted that the appellant was likely to be acquitted on account of several grounds which he could immediately agitate but, since the appeal was filed in 2009, its hearing was not taking place.
The jail record of the convict clearly showed that he was apprehended in the year 2004 and convicted in the year 2008. He is aged 46 years and he has already undergone nearly 8 years of rigorous imprisonment without a single day of release on parole, furlough or temporary bail. It was fairly conceded by learned Counsel appearing on both sides that, in view of a Full Bench decision of this Court, the Government was not exercising its powers to release convicted persons on parole during pendency of his or her criminal appeal. Thus, the convicted persons in such cases are deprived or any furlough leave as also parole and the application for temporary bail remains the only remedy even for temporary release on valid grounds or to meet any emergency situation.
Having regard to the observations made by Larger Bench of the Supreme Court in Dadu @ Tulsidas (supra), this Court has to keep in view availability of parole in normal circumstances and its denial only on account of pendency of criminal appeal. While the Apex Court has categorically held that parole did not amount to the suspension, remission or commutation of sentences, which could be withheld under the garb of Section 32-A, temporary bail being substitute for parole in particular facts and circumstances of a case coming up before the Court, the rigorous of Section 37 could not be applied, particularly as regards recording satisfaction as to reasonable grounds for believing that the appellant is not guilty of the offence and that he is not likely to commit any offence while on bail. As noted in the judgment in Dadu @ Tulsidas (supra), the Convention to which India is claiming to be a party, clearly and unambiguously showed that the Court''s jurisdiction with respect to the offences relating to narcotic drugs and psychotropic substances was never intended to be ousted, taken away or curtailed. The declaration was made subject to constitutional principles and the basic concepts of its legal system prevalent in the polity of a member country. It could not be denied that judicial review in our country is the heart and soul of our constitutional scheme and the judiciary is constituted the ultimate interpreter of the Constitution and is assigned the delicate task of determining the extent and scope of the powers conferred on each branch of the Government, ensuring that action of any branch does not transgress its limits. That, however, does not mean that in all or every case of application for temporary bail, the Court may lightly suspend the sentence imposed upon the convict for the offences under the NDPS Act. In view of the seriousness of the offences and its deleterious effect on the society and the high stakes often involved in the trade of narcotic drugs and psychotropic substances, the Court is required to take extra precaution and sparingly use its power for granting temporary bail only in cases of genuine necessity or emergency. At the same time, it also has to be borne in mind that continuous incarceration of a convict for the period as long as 8 to 9 year is not conducive to reformation and rehabilitation of the convict and that the convict remains a human being with certain human rights even after conviction.
Therefore, having regard to the overall facts and circumstances and in view of the readiness expressed on behalf of the applicant to provide such security and surety as may be required for ensuring return of the applicant to jail, we are inclined to partly allow the application. Accordingly, the application is allowed, the convict, Yunuskhan Haiderkhan Pathan, is ordered to be released for a period of ten days on his personal bond in the sum of rupees one lakh and on his furnishing before the jail Authorities two solvent sureties for the sum of Rs. 50,000/- each, with usual conditions. The convict may be released on temporary bail as early as practicable in view of the impending date of the ceremony, which he is required to attend. During the period of temporary bail, the convict shall not leave local limits of the city of Ahmedabad and shall inform to the nearest Police Station the address of his residence and shall not indulge in any unlawful activity or misuse his liberty. Rule is made absolute accordingly. Direct Service.