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In a recent judgment dated May 10, 2016 in a case filed by Singh Lawyers titled as Jugla Ram v. State of Haryana (CRM No. 8023 of 2016). The applicant-appellant was convicted under Section 15 of the NDPS Act, 1985, and was sentenced to undergo rigorous imprisonment of ten years and to pay a fine of Rs. 1,00,000/-, in default thereof, to further undergo rigorous imprisonment for one year. The custody certificate dated 7.4.2016 had already been filed by the State and the applicant has undergone the actual sentence of 5 years and 4 days. However, he had not undergone the sentence of 15 months after the conviction, as per the Division Bench judgment of this Court in Daler Singh Versus State of Punjab, 2007 (1) RCR (Criminal) 316.
Justice Kuldip Singh of Punjab and Haryana High Court ordered the suspension of sentence of a convict who had undergone the actual sentence of 5 years (including the duration as undertrial prisoner) out of 10 years awarded by the lower Court. The court ordered that,
“KEEPING IN VIEW THE DIVISION BENCH JUDGMENT OF THIS COURT IN DALIP SINGH (MENTIONED BELOW) AND KEEPING IN VIEW THE TOTAL CUSTODY PERIOD AND ALSO THE FACT THAT NO OTHER CASE IS PENDING OR DECIDED AGAINST APPLICANT-APPELLANT, THE SENTENCE OF APPLICANT-APPELLANT IS SUSPENDED.”
Due to paucity of judges and long pendency of appeals, the method adopted for suspension of sentence by the High Court of Punjab and Haryana High Court was that certain duration of sentence has to be undergone after the pronouncement of conviction (Dharam Pal v. State of Haryana and Daler Singh v. State of Punjab). But now, in the above-mentioned case considering the judgment of another Bench in Dalip Singh case, the Court has ordered that total custody period is to be seen. Landmark Judgments relating to suspension of sentence are:
It was observed that,
“5. There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the undertrial prisoners and that is the notorious delay in disposal of cases. It is sad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in commencement of the trial is bad enough; how much worse could it be when the delay, is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice.”
Hon’ble High court of Punjab and Haryana laid down the following guidelines:
Life convicts who have undergone five years of imprisonment of which three years should be after conviction, should be released on bail pending hearing of the appeals.
Same principles ought to apply to those convicted by Court Martial.
Period of five years should be reduced to four for females and minors with at least two years imprisonment after conviction.
These directions will not apply in cases where the grant of law if forbidden by law.
Daler Singh v. State of Punjab {2007(1) R.C.R. (Criminal) 316}
Hon’ble High Court of Punjab and Haryana observed that keeping in view the spirit of Article 21, the following principles should be adopted for the release of the prisoners (convicts) on bail after placing them in different categories as under :-
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 sentence of six years, which must include at least fifteen months after conviction.
Where the convict is sentenced for 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 sentence of four years, which must include at least fifteen months after conviction.
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 at least twelve months after conviction.
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 section 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 at least twelve months after conviction.
No bail should be granted to a proclaimed offender, absconder or the accused repeating the offence under the Act.
“17. We feel that in cases where accused spend long time in custody as undertrials, it would be unfair to require them to again spend certain fixed period post conviction before sentence can be suspended. Under Section 428 Criminal Procedure Code the period of detention undergone by the accused is set off against the sentence of imprisonment. Therefore, we feel that the undertrial period should be added to the post conviction period and an appellant who has completed 5 years in all should be entitled to suspension of sentence automatically. In the present case, the appellant has served nearly 6 ó years of sentence as an undertrial and 2 years post conviction. There may be many such cases where accused languish in prison as undertrials and are deprived of suspension of sentence because their conviction is comparatively recent. When the undertrial period is also counted towards sentence then it should not make any difference if the appellant has or has not done three years after conviction.”
Hon’ble High Court of Punjab and Haryana observed: “Benefit given to appellants of suspension of sentence on account of long period spent in custody, this court is consistently following the judgments in Dharam Pal versus State of Haryana and Daler Singh Versus State of Punjab However, both in Dharam Pal and Daler Singh’s cases (supra), the appellants required to complete a certain minimum period post conviction before sentence can be suspended. In Dharam Pal’s case, the appellant is required to complete 3 years post conviction and total period of 5 years in custody. In Daler Singh’s case the appellant is required to complete period varying from 12 to 15 months post conviction and total sentence varying from 2 to 6 years.
We feel that in cases where accused spend long time in custody as undertrials, it would be unfair to require them to again spend certain fixed period post conviction before sentence can be suspended. Under section 428 Cr.P.C. the period of detention undergone by the accused is set off against the sentence of imprisonment. Therefore, we feel that the undertrial period should be added to the post conviction period and an appellant who has completed 5 years in all should be entitled to suspension of sentence automatically.
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