MADAN, J. - (1.) WHEN at the outset I decline to suspend the impugned sentence on any of grounds, and ask the learned counsel for the applicant to get the appeal, itself, heard on merits, Shri Tyagi instead of not pressing this 3rd application, sought to keep the same pending till the hearing of the appeal, which cannot be allowed. Hence by this detailed order, I dispose of this petition.
(2.) THIS is third petition seeking suspension of impugned sentence. First application was decided on merit keeping in view the decision of the Apex Court in Maqtool Singh vs. State of Punjab (1) , but the appellant was ordered to be released on parole on the ground of sickness of his child/son for three months vide order dated 6. 7. 99 in S. B. Cr. Bail Appln. No. 298/99. Again on an application, this Court by its order dated 10. 12. 99 in Cr. Appeal No. 310/99 ordered to release on temporary bail (parole) for four months from that day with the direction to surrender on 17. 4. 2000, followed by another order dated 12. 5. 2000 in S. B. Cr. 2nd Bail application No. 330/2000, by which again the appellant was temporarily released for eight weeks time, with the direction to surrender on or before 17. 7. 2000, which was extended till 17. 10. 2000 by order dated 1. 9. 2000. But again application was moved therefore, by order dated 15. 12. 2000 in 2nd application No. 330/2000 on the ground of sickness of child (son), the impugned sentence was suspended temporarily till 14. 2. 2001 and further temporarily the impugned sentence was suspended by order dated 21. 3. 2001 for eight weeks with the direction to surrender on or before 22. 5. 2001. Surprisingly the appellant was to surrender on 22. 5. 2001 as per order dated 21. 3. 2001 in 2nd application No. 330/2000 but before it third application at hand has been moved on 10. 5. 2001 though on the ground that as per decision of the Apex Court in Dadu vs. State of Maharashtra (2), this court has power to suspend the sentence but again reiterating the prayer for suspension of impugned sentence laying much stress on the ground of sickness of his child. Be that as it may, for the sickness of his child the appellant was temporarily released on parole since 6. 7. 99 on consecutive applications on more than five times, either by extension or for intervening short period he surrendered to jail to undergo. Even as per decision of the Apex Court in Dadu vs. State of Maharashtra (supra), the convict under the NDPS Act will not be entitled to ask for suspension of sentence as a matter of right just because Sec. 32a of the Act has been held to be void to the extent it takes away the right of courts to suspend a sentence awarded under the Act; and further that the convict may apply for parole and suspension of sentence, but cannot claim them as a matter of right, rather the Apex Court laid much emphasis that power of suspension of sentence must be exercised within parameters of Sec. 37 of the Act. The Apex Court as regards parole held that parole is not a suspension of the sentence and the grant of parole is essentially an executive function to be exercised within the limits prescribed in that behalf and it would not be open to the Court to reduce the period of detention by admitting a detenu or convict on parole and the Court cannot substitute the period of detention either by abridging or enlarging it. The Apex Court defined `parole' and thereby it means the release of a prisoner temporarily for a special purpose before the expiry of a sentence on the promise of good behaviour and return to jail and it is a release from jail, prison or other interment after actually being in jail serving part of sentence. The Apex Court laid much stress that the convict continues to be serving the sentence despite granting of parole under the statute, rules, jail manual or the Government orders. Therefore, ultimately it was held has under:- " It is thus clear that parole did not amount to the suspension, remission or commutation of sentences which would be withheld under the garb of Sec. 32a of the Narcotic Drugs and Psychotropic Substances 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 Government instructions. " Limitations on granting of bail are specified in clause (b) of sub-sec. (1) of Sec. 37 of the Act, which provides that no person accused of an offence punishable for a term of imprisonment of five years or more under the NDPS Act shall be released on bail or on his own bail unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence. These limitations were held applicable by relying on the decision in Union of India vs. Ram Samujh (3), for the cases of suspension of sentence under the Act. In this view of the matter, and applying the principle of law laid down, in the facts and circumstances of this case. I do not find any merit or reasonable ground to suspense the impugned sentence as provided under Sec. 37 of the NDPS Act. Accordingly this third application No. 481/2001 is dismissed. Consequently 2nd application Nos. 330/2000, & 1st application No. 310/99, which the Registry has been treating pending may also be stood finally disposed of. Let the criminal appeal be listed for hearing before regular bench. .;