Madhya Pradesh High CourtRajendra Hemraj Singh vs State Of M.P. on 28 September, 1994Equivalent citations: 1995(0)MPLJ541Bench:Chief Justice,Rajeev GuptaORDER
 

U.L. Bhat, C.J.1. The petitioner herein was convicted under Section 8, read withSection 18of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, the Act) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac with default sentence of imprisonment for two years by the Special Court, Ratlam. His appeal was dismissed by the High Court. Having undergone a part of the sentence, he submitted an application to the State Government for release on licence under Section 2 of the M. P. Prisoners' Release on Probation Act, 1954, (for short, the Act of 1954). During the pendency of the application, he filed the present writ petition for issue of a writ of habeas corpus and release on bail pending consideration of his application for release on licence under the 1954 Act. This writ petition was heard at Indore Bench by a Division Bench consisting of V.D. Gyani, J. and S. D. Jha, J. The State relied on an earlier unreported decision of a Division Bench consisting of A. G. Qureshi, J. and S. D. Jha, J. in Jagtar Singh v. State of M.P., M.P. No. 534/91, holding that a person convicted underSection 8, read withSection 18of the N.D.P.S. Act is not governed by the provisions of the 1954, Act. The judgment is a brief one and does not give any reasons for the view taken. Gyani, J. took the view that the earlier Division Bench decision requires reconsideration. The Division Bench, therefore, referred the matter to a Larger Bench. That is how the case has come before us.2. The 1954 Act has been enacted to provide for the release on licence of certain prisoners on conditions imposed by the Government. The State Government has framed M. P. Prisoners' Release on Probation Rules, 1954, in exercise of rule making power conferred on it underSection 9of the 1954 Act.Section 9(4)empowers the Government to make rules for defining the classes of offenders who may be conditionally released. Rule 3 prescribes the classes of persons who shall not be released under the Act. Since the Act was enacted and the rules were framed long before the coming into force of theN.D.P.S. Act, the question of Rule 3 including or not including persons convicted under the provisions ofN.D.P.S. Actin the classes prescribed under Rule 3 does not arise.3. Our attention is invited toSection 32Aof the N.D.P.S. Act which was incorporated by Amendment Act No. 2 of 1989. It reads thus :"Notwithstanding anything contained in theCode of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, but subject to the provisions ofSection 33, no sentence awarded under this Act (other thanSection 27), shall be suspended or remitted or commuted."Sections 15to31-Aprescribe punishments for certain offences.Section 32prescribes punishment for offence for which no punishment is provided under theN.D.P.S. Act.Section 27deals with punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance. Under clause (a), maximum sentence prescribed is imprisonment for a term which may extend to one year or with fine or with both. Under clause (b), the maximum sentence prescribed is imprisonment for a term which may extend to six months or with fine or with both. Apparently, the offences dealt with underSection 27are regarded as minor offences and comparatively lesser sentences are prescribed. Obviously, this is the reason why sentence underSection 27of the Act has been excluded from the purview ofSection 32Aof the N.D.P.S. Act.4.Section 32Aof the N.D.P.S. Act excludes sentences awarded other than underSection 27, from suspension, remission or commutation. These expressions are no doubt found in theCriminal Procedure Code. Section 389 of the Code deals with suspension of sentence pending appeal and release of the appellant on bail. Section 432 confers on the appropriate Government power to suspend or remit sentence with or without conditions. Section 453 deals with the power to commute sentence. Thus, it is seen that the expression "suspension" has been used in different contexts underSections 389and432of the Criminal Procedure Code. The former is power of suspension of sentence by the appellate Court during the pendency of an appeal and the latter is power of the appropriate Government to suspend sentence after it has become final. The question is whether the release of a person on licence contemplated in the 1954 Act can be remission or commutation. It cannot certainly be regarded as remission or commutation.5. A Full Bench of this Court had occasion to consider the purpose of the provisions of the 1954 Act inGangacharan Baijnath Prasad v. State of M.P. and Ors., 1994 MPLJ 792. It is underSection 2of the Act that a person confined in prison under a sentence of imprisonment can be released on licence on condition that he be placed under the supervision or authority of a Government Officer or of a person professing the same religion as the prisoner or such institution or society as may be recognised by the Government for the purpose. A licence so granted shall be in force until the date on which the person released would, in the execution of the order of warrant authorising his imprisonment, have been discharged from prison had he not been released on licence, or until the licence is revoked, whichever is earlier.Section 4declares that the period during which a person is absent from prison under the provisions of the Act on a licence which is in force, shall be reckoned as part of the period of imprisonment to which he was sentenced for the purpose of computing the period of his sentence and for the purpose of computing the amount of remission of sentence which might be awarded to him under any rules in force relating to such remission.6. The release on licence is release for a period which commences from the date on which he would have been discharged from prison, but for the release on licence under the Act or the rules. The period of release for the purpose of computation of the period of sentence and computation of the amount of remission to be awarded to him shall be reckoned as part of the period of imprisonment. In other words, the period during which he is released, i.e. outside the prison, is reckoned as part of the period of imprisonment. The period when he is free is reckoned as period when he is not free. This state of affairs cannot be brought under the strict meaning of "release or suspension." It is not release in the sense of unconditional release or discharge from the sentence. There is no suspension by the appellate Court or revisional court and there is no suspension stricto sensu as contemplated in Section 432 of the Code. But, the release on licence under the 1954 Act is almost similar to the suspension under Section 432 of the Code, considering the purpose behind the action and the legal consequences thereafter. There is nothing inSection 32Aof the N.D.P.S. Act to indicate that the Legislature intended to attach any restricted meaning to the words 'suspended' used therein. Black's Law Dictionary, Fourth Edition, at page 1616, furnishes the following meaning for the word 'suspension' - "A temporary stop, a temporary delay, interruption, or cessation." Release on licence is certainly a temporary stoppage or interruption or cessation of the physical operation of the sentence of imprisonment, though for limited purpose period of release is reckoned as period of imprisonment undergone.Section 32Aclearly bars the appellate or revisional Court from suspending the sentence imposed on the person under the provisions of theN.D.P.S. Actother thanSection 27. To hold that the words 'suspension' used inSection 32Aof the N.D.P.S. Act has only this restricted meaning would lead to the consequence that while before the sentence attains finality, it cannot be suspended after it attains finality, it can be suspended in the sense that the convicted person can be released on licence. This certainly could not have been the legislative intention underlyingSection 32Aof the Act.7. For the reason aforesaid, with respect, we approve the dictumlaid down inJagtar Singh v. State of M. P., M. P. No. 534 of 1991, and hold that the provisions of the M. P. Prisoners' Release on Probation Act, 1954, and the rules framed thereunder cannot be applied to persons convicted under the provisions of theN.D.P.S. Act, other thanSection 27.8. The only relief claimed in the petition is that the petitioner should be given the benefit of the provisions of the M. P. Prisoners' Release on Probation Act, 1954. He is not entitled to the benefit of the Act. We dismiss the petition, but without costs.