- (1.) The present appeal has been filed by appellant-Subhash Chander against judgment of conviction and order of sentence dated 12.1.2000 passed by learned Judge, Special Court, Kapurthala, whereby, the appellant was convicted and sentenced under Section 21 of NDPS Act to undergo RI for ten years and pay a fine of Rs. 1 lac and in default of payment of fine to further under RI for one year.
(2.) The appeal was admitted vide order dated 20.1.2000 and since the sentence imposed upon the appellant was not suspended, an order for listing of main appeal was passed. Recovery of fine was also not stayed. The appellant has expired during pendency of the appeal and appeal was ordered to be abated vide order dated 16.3.2005. Thereafter, an application was moved by the LR of deceased for recalling of the order of abatement and following order was passed by this Court on 21.12.2005:- "Subhash Chander son of Kishori Lal was booked in a case bearing FIR No. 35 datd 13.12.1994 registered at Police Station Dhilwan, District Kapurthala, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He was convicted for the said offence by the learned Judge, Special Court, Kapurthala on 12.1.2000 and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac. Aggrieved by the said judgment of conviction and sentence, he preferred the instant appeal in this Court. The same was admitted and the sentence of fine was suspended. When the aforesaid appeal was taken up for final disposal, this Court was informed that the appellant had died his natural death in the jail itself. The death certificate was also placed on the record. In view of the aforesaid facts, the present appeal was disposed of as having abated vide order dated 16.3.2005. The son of the deceased has not moved this Court for recalling the aforesaid order dated 16.3.2005 vide which the appeal stands abated. In fact, these are the separate applications viz. Crl. Misc. No. 44115 of 2005 under Section 394 of the Code of Criminal Procedure for grant of leave the present applicant to continue with the appeal after the death of his father; Crl. Misc. No. 44116 of 2005 under Section 482 of the Code of Criminal Procedure for recalling the order dated 16.3.2005, and Crl. Misc. No. 44117 of 2005 for condonation of delay of 1389 days in filing the present application. Vide this order all the aforesaid three applications are being disposed of. Pursuant to the notice, the State has filed reply to all the aforesaid applications. I have heard Mr. Mann, learned counsel appearing for the applicant and learned AAG, Punjab. Mr. Mann while drawing my attention to the provisions of Section 394 of the Code of Criminal Procedure submits that the present appeal, in fact, cannot abate as appellant Subhash Chander (since deceased) after suffering conviction under NDPS Act was awarded sentence of fine also and once the trial Court imposes the sentence of fine along with the substantive sentence, an appeal filed against the said judgment cannot abate even on the death of the appellant. In support of his contention, he relies upon a judgment of Hon'ble Apex Court rendered in Harnam Singh Vs. State of Himachal Pradesh, 1975 AIR(SC) 236 According to Mr. Mann, the concerned authorities have started the process of recovering the amount of fine. Learned State counsel is not in a position to controvert the legal position, but submits that the application for grant of leave to continue with the appeal should not be allowed as there is a huge delay in filing the application for the said relief. Since the case of the applicant is on firm legal footings in the light of the provisions of Section 394 of Code of Criminal Procedure and ratio laid down in Harnam Singh's case , in my considered view, the delay in filing the present application becomes insignificant and it should not stand in the way. I have seen the instant case yet from another angle. Since the appeal was not finally disposed of on merits and it stood abated on account of death of the appellant without even touching the merits, re-hearing of the present appeal, in my considered view, would not amount to review of the order as barred under Section 362 of the Code of Criminal Procedure. In view of the above, I condone the delay of 1389 days in filing the application for leave to appeal. Crl. Misc. No. 44117 of 2005 is accordingly disposed of. Since the present appeal is to be heard on merits, the other two miscellaneous applications viz. No. 44115 and 44116 of 2005 are also allowed. Resultantly, the earlier order dated 16.3.2005 is hereby recalled and leave to continue with the instant appeal is granted to the applicant. Appeal be restored to its original number for final disposal on merits. Let the instant appeal along with relevant records be put up before the appropriate Bench as per the roster for its final disposal after obtaining necessary orders from Hon'ble the Chief Justice. Since it is an old appeal of year 2000, office is directed to place the file before Hon'ble the Chief Justice without any further delay."
(3.) Since the appellant had expired during pendency of the appeal and sentence of rigorous imprisonment for offence under Section 21 of NDPS Act stands abated. Now the question for consideration by this Court is as to whether in a case where fine is imposed by the trial Court apart from sentence of rigorous imprisonment, whether on death of the appellant, appeal qua fine shall be abated or not;