1. By medium of this application under 1st Proviso to Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023, ( in short B.N.S.S) the applicant has sought release on regular bail on the ground of having completed more than 1/3rd incarceration/ sentence of the maximum sentence awarded under Section 20(1) C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D. & P.S.Act).

2. Heard. It is not in dispute that the applicant has completed 1/3rd of the sentence as submitted in the application. However, the moot question is whether solely on account of having completed 1/3rd of the sentence, the applicant would be entitled to bail.

3. Learned counsel for the applicant has placed reliance upon order passed by a Division Bench of this Court, in Cr.M.P. No.3672 of 2024 in Criminal Appeal No.137 of 2023 decided on 14.10.2024, in which one of us (Justice Tarlok Singh Chauhan) was a member, wherein this court had granted bail only on the ground that the applicant therein had undergone more than 1/3rd of the sentence. It shall be apt to reproduce paras 4 to 7 thereof, which read as under:-

“4. We have heard the learned counsel for the applicant/appellant as well as learned Additional Advocate General and have also gone through the material available on record.

5. In Satender Kumar Antil vs. Central Bureau of Investigation & another, (2022) 10 Supreme Court Cases 51, after taking note of the provisions of Section 436A, Cr.P.C., the Hon’ble Apex Court held as under:-

“63. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and trial. We have already explained that the word ‘trial’ will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision. 64. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offense, he shall be released by the court on his personal bond with or without sureties. The word ‘shall’ clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that ‘bail is the rule and jail is an exception’ coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article

21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the accused to be excluded…..”

6. Section 436-A of Cr.P.C. has now been replaced by Section 479 of the BNSS, the relevant portion whereof reads as under:-

“479. Maximum period for which undertrial prisoner can be detained. – (1) Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (now being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under law, he shall be released by the Court on bail;

Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law:”

… … … … … …

7. The instant appeal is of the year 2023 and the same is not likely to be decided in near future and there is also nothing on record to suggest that the delay in deciding the appeal is attributable to the applicant/appellant. Therefore, in view of the facts and circumstances of the case, since the applicant has already undergone more than 1/3rd of the sentence, as against the total sentence of ten years imposed upon him by the learned Trial Court and keeping in view the provisions of Section 479 of BNSS and also the aforesaid judgment of the Hon’ble Supreme Court, the substantive sentence imposed upon the applicant by the Trial Court, vide judgment of conviction, dated 11.11.2022 and order of sentence, dated 21.11.2022, passed by learned Special Judge, Hamirpur, District Hamirpur, H.P., shall remain suspended, till final disposal of the appeal, however, subject to the applicant’s furnishing personal bond in the sum of Rs. 2,00,000/- with two sureties in the like amount each to the satisfaction of learned Trial Court and also subject to deposit of the fine amount, if not already deposited. On furnishing the requisite bail bonds and on depositing the fine amount, he be released forthwith, if not required in any other case, however, with the undertaking to appear before this Court as and when directed and in the event of the dismissal of the appeal, the applicant/appellant will surrender before the Court.”

4. However, the learned Additional Advocate General for the State would argue that the aforesaid order in Khem Singh’s case (supra) has been passed without taking into consideration the law on the subject and as a matter of fact this issue is required to be decided in accordance with the order dated 19.12.2024, in Cr.M.P. No.4523 of 2024 in Criminal Appeal No.67 of 2023 titled as Datti Ram versus State of H.P. passed by a Division Bench of this Court, in which one of us (Justice Rakesh Kainthla) was a member, wherein in paras No. 7 to 22 thereof it was observed as under:-

7. Section of 430 BNSS deals with the power of the Court to suspend the sentence. It reads as under:-

“430. Suspension of sentence pending appeal; release of appellant on bail. — (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond or bail bond:

Provided that the Appellate Court shall, before releasing on his own bond or bail bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, —

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years; or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.”

8. Section 479 of BNSS reads as under:-

“479. Maximum period for which under trial prisoner can be detained.—(1) Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail:

Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one- third of the maximum period of imprisonment specified for such offence under that law:

Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond:

Provided also that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation. —In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

(2) Notwithstanding anything in sub-section (1), and subject to the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court.

(3) The Superintendent of jail, where the accused person is detained, on completion of one-half or one-third of the period mentioned in sub-section (1), as the case may be, shall forthwith make an application in writing to the Court to proceed under sub-section (1) for the release of such person on bail.”

9. Hon’ble Supreme Court held in Satender Kumar Antil v. CBI, (2022) 10 SCC 51: (2023) 1 SCC (Cri) 1: 2022 SCC OnLine SC 825 that the word ‘trial’ includes an appeal or revision while considering the suspension of the sentence. It was observed at page 75:

“Definition of trial

7. The word “trial” is not explained and defined under the Code. An extended meaning has to be given to this word for the purpose of enlargement on bail to include, the stage of investigation and thereafter. Primary considerations would obviously be different between these two stages. In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter what matters substantially is the proceedings before the court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favourable consideration towards enlargement when investigation is completed, of course, among other factors.

8. Similarly, an appeal or revision shall also be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence.”

10. It further held that the power under Section 389 of Cr.P.C. (now substituted by Section 430 of BNSS) is different from Sections 438 or 439 (now substituted by Sections 482 and 483 of BNSS) of the Code, the delay in taking up the main appeal would be a factor under Section 436A of Cr.P.C.(now substituted by Section 479 of BNSS), but the Court will have to see other relevant factors, including the conviction rendered by the learned Trial Court. It was observed at page 113:

“56. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available under Section 436-A would also be considered, the courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the appellant.

57. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred under Section 436-A of the Code among other factors ought to be considered for a favourable release on bail.”

11. Thus, the submission of Ms Seema Sharma, learned Deputy Advocate General for the non-applicant/respondent, is to be accepted as correct that the application should have been filed under Section 430 of BNSS rather than under 1st proviso to Section 479 of BNSS.

12. A bare perusal of Section 479 of BNSS reveals that it mentions the maximum period of imprisonment specified for such an offence under the law and not the awarded sentence.

13. Mr George, learned counsel for the applicant, submitted that the Court can consider the factors mentioned in Section 32-B of the NDPS Act to award higher than the minimum imprisonment under Section 32-B of NDPS Act, which means that minimum imprisonment under the NDPS Act should be construed as the maximum imprisonment in the absence of the factors specified in Section 32-B of the NDPS Act. This submission is only stated to be rejected because the minimum sentence can never be construed as a maximum sentence by any cannon of interpretation or by any stretch of imagination, and adopting such a construction amounts to violating the plain statute of the text and cannot be adopted. Rafiq Qureshi v. Narcotic Control Bureau, (2019) 6 SCC 492: (2019) 2 SCC (Cri) 837: 2019 SCC OnLine SC 666 that section 32-B of the NDPS Act does not fetter the discretion of the judge to award higher than minimum sentence as is apparent from the words ‘such factors as it may deem fit’ but provides additional factors for imposing higher sentence. It was observed at page 497:

“15. We have to first see the actual words used in the statute to find out the object and purpose of inserting Section 32-B. The court after conviction of an accused hears the accused and takes into consideration different circumstances of the accused and the offence for awarding the appropriate sentence. Section 32-B uses the phrase “the court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment”.

The above statutory scheme clearly indicates the following:

15.1. The court may where minimum term of punishment is prescribed take into consideration “such factors as it may deem fit” for imposing a punishment higher than the minimum term of imprisonment or fine.

15.2. In addition, take into account the factors for imposing a punishment higher than the minimum as enumerated in clauses (a) to (f).

16. The statutory scheme indicates that the decision to impose a punishment higher than the minimum is not confined or limited to the factors enumerated in clauses (a) to (f). The Court's discretion to consider such factors as it may deem fit is not taken away or tinkered. In case a person is found in possession of a manufactured drug whose quantity is equivalent to commercial quantity, the punishment as per Section 21(c) has to be not less than ten years which may extend to twenty years. But suppose the quantity of manufactured drug is 20 times of the commercial quantity, it may be a relevant factor to impose punishment higher than minimum. Thus, quantity of substance with which an accused is charged is a relevant factor, which can be taken into consideration while fixing quantum of the punishment. Clauses (a) to (f) as enumerated in Section 32-B do not enumerate any factor regarding quantity of substance as a factor for determining the punishment. In the event the Court takes into consideration the magnitude of quantity with regard to which an accused is convicted, the said factor is relevant factor and the court cannot be said to have committed an error when taking into consideration any such factor, higher than the minimum term of punishment is awarded.

17. This Court in Sakshi v. Union of India [Sakshi v. Union of India, (2004) 5 SCC 518: 2004 SCC (Cri) 1645], held that it is a well-settled principle that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. A construction which requires for its support addition or substitution of words has to be avoided. In para 19 of the judgment the following was laid down: (SCC p. 537)

“19. It is well-settled principle that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear. (Justice G.P. Singh: Principles of Statutory Interpretation, pp. 58 and 751, 9th Edn.)”

18. The specific words used in Section 32-B that court may, in addition to such factors as it may deem fit clearly indicates that court's discretion to take such factor as it may deem fit is not fettered by factors which are enumerated in clauses (a) to (f) of Section 32-B.

xxxxxx

23. In view of the foregoing discussion, we are of the view that punishment awarded by the trial court of a sentence higher than the minimum relying on the quantity of substance cannot be faulted even though the court had not adverted to the factors mentioned in clauses (a) to (f) as enumerated under Section 32-B. However, when taking any factor into consideration other than the factors enumerated in Sections 32-B(a) to (f), the court imposes a punishment higher than the minimum sentence, it can be examined by higher courts as to whether factor taken into consideration by the court is a relevant factor or not. Thus in a case where the court imposes a punishment higher than minimum relying on an irrelevant factor and no other factor as enumerated in Sections 32-B(a) to (f) is present, award of sentence higher than minimum can be interfered with.”

14. A similar view was taken in Gurdev Singh v. State of Punjab, (2021) 6 SCC 558: (2021) 3 SCC (Cri) 96: 2021 SCC OnLine SC 285,and it was held that the court should be guided by the factors mentioned in Section 32 -B of the NDPS Act and other relevant factors while imposing a sentence higher than the minimum. Therefore, factors mentioned in Section32-B of the NDPS Act are in addition to other relevant facts, and it cannot be said that the minimum sentence under the NDPS Act is to be considered as a maximum sentence. It was observed at page 564:

“7. Therefore, while imposing a punishment higher than the minimum term of the imprisonment or an amount of fine, the court may take into account the factors enumerated in Section 32-B of the Act referred to hereinabove. However, it is required to be noted that Section 32-B of the Act itself further provides that the court may, in addition to such factors as it may deem fit, take into account the factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine as mentioned in Section 32- B of the Act. Therefore, while imposing the punishment higher than the minimum term of imprisonment or amount of fine, the court may take into account such factors as it may deem fit and also the factors enumerated/mentioned in Section 32-B of the Act. Therefore, on fair reading of Section 32-B of the Act, it cannot be said that while imposing a punishment higher than the minimum term of imprisonment or amount of fine, the court has to consider only those factors which are mentioned/enumerated in Section 32-B of the Act. xxxxx

10. Therefore, the quantity of substance would fall into “such factors as it may deem fit” and while exercising its discretion of imposing the sentence/imprisonment higher than the minimum, if the court has taken into consideration such factor of larger/higher quantity of substance, it cannot be said that the court has committed an error. The court has a wide discretion to impose the sentence/imprisonment ranging between 10 years to 20 years and while imposing such sentence/imprisonment in addition, the court may also take into consideration other factors as enumerated in Sections 32-B(a) to (f). Therefore, while imposing a punishment higher than the minimum sentence, if the court has considered such factor as it may deem fit other than the factors enumerated in Sections 32-B(a) to (f), the High Court has to only consider whether “such factor” is a relevant factor or not.”

15. Thus, the submission that the minimum sentence has to be considered as maximum sentence cannot be accepted.

16. The Hon’ble Supreme Court observed in para 1 of the orders dated 23.08.2024 & 22.10.2024 and para 4 of the order dated 19.11.2024 in Re-Inhuman conditions (supra) that 1st proviso of Section 479 of BNSS is to apply where the person has undergone detention for a period extending up to 1/3rd of the maximum period of imprisonment specified for such an offence. It held in para 3 of Badshah Majid Malik (supra) that the maximum sentence for the scheduled offence was three (3) years, and the petitioner therein was entitled to bail under 1st proviso to Section 479 of BNSS; therefore, the submission that the maximum period of imprisonment in proviso 479 of BNSS is to be considered as the awarded sentence of imprisonment cannot be accepted.

17. Ms Seema Sharma, learned Deputy Advocate General for the non-applicant/respondent, had rightly submitted that while considering the suspension of sentence involving the commercial quantity of narcotics, the Court has to consider the provisions of Section 37 of the NDPS Act. It was held in Dadu @ Tulsidas vs. State of Maharashtra 2000(8) SCC 437 that sentence awarded under the NDPS Act can be suspended by the Appellate Court only and strictly subject to the conditions spelt in Section 37 of the NDPS Act. It was observed at page 455:

“27. 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 under Section 37 of the Act. Section 37 of the Act provides:

“37. Offences to be cognizable and non-bailable.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause

(b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.”

28. This Court in Union of India v. Ram Samujh [(1999) 9 SCC 429: 1999 SCC (Cri) 1522] held that the jurisdiction of the court to grant bail is circumscribed by the aforesaid section of the Act. The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which he is convicted and he is not likely to commit any offence while on bail and during the period of suspension of the sentence. The Court further held: (SCC pp. 431-32, paras 6-8)

“6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus:

‘Even though the major offences are non- bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt.’(emphasis supplied)

7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95: 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) ‘24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail are satisfied.”

29. Under the circumstances the writ petitions are disposed of by holding that:

(1) Section 32-A does not in any way affect the powers of the authorities to grant parole.

(2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act.

(3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act, as dealt with in this judgment.”

18. In the present case, the applicant was convicted for the commission of an offence punishable under Section 20(b)(ii)(c) of the NDPS Act involving the commercial quantity, and he cannot be released on bail without satisfying the twin conditions laid down in Section 37 of the NDPS Act. It was nowhere mentioned in the application that twin conditions stand satisfied in the case of the applicant, thus, the applicant cannot seek the suspension of the sentence as per the judgment of the Hon’ble Supreme Court in Dadu (supra).

19. In Balkar Singh (supra), Raj Kumar (supra), and Khem Singh (supra), the Court had granted bail in the peculiar facts and circumstances of the case while considering that the appeals were not likely to be taken up soon. A reference was made to the period of imprisonment undergone by the applicant as well as to Section 479 of BNSS, but the orders do not show the bail was granted solely under the first proviso to Section 479 of BNSS by interpreting the word ‘maximum period specified’ as ‘maximum sentence awarded’. Moreover, it appears that the judgment of Hon’ble Supreme Court in Dadu @ Tulsidas (supra,) was not brought to the notice of the Court wherein the Hon’ble Supreme Court had laid down that while deciding the application for suspension of sentence, the provision of Section 37 of NDPS Act are to be considered. Since we are bound by the judgment of Hon’ble Supreme Court rendered in Dadu @ Tulsidas (supra) and there is nothing on record to satisfy the twin conditions laid down under Section 37 of NDPS Act, therefore, the present application cannot be allowed by relying upon the judgments rendered Balkar Singh (supra), Raj Kumar (supra), and Khem Singh (supra).

20. Nanhe Lal Verma (supra) and Atul @ Ashutosh (supra) also do not apply to the present case because they did not deal with the commercial quantity of the NDPS Act, as is apparent from the fact that in Nanhe Lal Verma (supra), the sentence imposed was four (4) years, and in Atul @ Ashutosh (supra) the sentence imposed was five (5) years. The minimum sentence in cases involving commercial quantity under the NDPS Act is 10 years, which shows that both these judgments do not deal with the commercial quantity under the NDPS Act.

21. This Court held in Shehzad Ali Shah vs. State of Himachal Pradesh Cr.P.M(M)No.4214 of 2024 decided on 07.11.2024 that the period specified in Section 479 of BNSS has to be construed as maximum period specified and not the sentence awarded. The matter was carried to Hon’ble Supreme Court and the SLP (Crl) No. 17241 of 2024 titled Shehzad Ali Shah vs. State of Himachal was dismissed on 10.12.2024.

22. Consequently, we are unable to agree with the submission that under the 1st Proviso to Section 479 of BNSS, the awarded sentence has to be considered instead of the maximum specified sentence while considering the suspension of the sentence. This was the only ground on which the present application was filed. Hence, the same is dismissed.”

5. Confronted with the stand taken by the respondent, learned counsel for the applicant would argue that as per the rule of judicial discipline and proprietary and the doctrine of precedents a decision of Coordinate Bench of the same High Court when brought to the notice of the Bench, it is to be respected and is binding; subject to right of the Bench of such co-equal quorum to take a different view and refer the question to a larger Bench. It is the only course of action open to a Bench of co-equal strength when faced with the previous decision taken by a Bench with the same strength.

6. Once that it be so, it is the earlier decision rendered by co-equal strength that would prevail over the latter decision of co- equal Bench passed in ignorance of the earlier decision of the Bench of co-equal strength.

7. In support of his contention, strong reliance has been placed by the applicant on the following judgments of the Hon’ble Supreme Court:-

"1. Civil Appeal No.13727 of 2015 titled as State of U.P. versus Ajay Kumar Sharma and another, decided on 26.11.2015.

2. Mary Pushpam versus Telvi Curusumary and others, 2024 Live Law (SC) 12.

3. National Insurance Co. Ltd. versus Pranay Sethi, 2017 (16) SCC 680."

8. We have heard the learned counsels for the parties and after going through the judgments relied upon by the parties find that as regard Khem Singh’s case, the same was decided simply on the basis of provisions of Section 479 of BNSS without taking into consideration the judgment of Hon’ble Supreme Court in Dadu alias Tulsidas versus State of Maharashtra, 2000 (8) SCC 437, which has been duly taken note of in Datti Ram’s case (supra,) wherein the Hon’ble Supreme Court has categorically held that while considering the suspension of sentence involving the commercial quantity of narcotics, the Court has to consider the provisions of Section 37 of the N.D. & P.S. Act. The relevant observations as contained in paras 27 to 29 of the judgment already stand quoted above and therefore, need not be reproduced.

9. Moreover, this court in Cr.M.P(M) No.4214 of 2024 titled as Shehzad Ali Shah versus State of H.P., decided on 07.11.2024 has held that the period specified in Section 479 of BNSS has to be construed as maximum period specified and not the sentence awarded and such findings rendered by this court have not been interfered with by the Hon’ble Supreme Court, when the matter was carried to it in SLP (Cr.L) No.17241 of 2024, titled as Shehzad Ali Shah versus State of H.P., decided on 10.12.2024.

10. It is more than settled that the law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions and it is therefore, desirable that in case of difference of opinion, the question should be authoritatively settled but then the instant one is not a case, where there is conflicting decision, rather as observed above, the decision in Cr.M.P. No.3672 of 2024 in Criminal Appeal No.137 of 2023 is given per incuriam as the Court had acted in ignorance of the judgment passed by the Hon’ble Supreme Court in Dadu’s case, thus, was not binding on the bench which decided Datti Ram’s case (supra).

11. Consequently, we are unable to agree with the submission that under the first proviso to Section 479 of the BNSS, the awarded sentence has to be considered instead of the maximum specified sentence while considering the suspension of the sentence.

12. Since, this application was filed only on this ground, therefore, the same is dismissed. However, before parting, it is made clear that the observations made hereinabove shall be confined to disposal of the instant application and will have no bearing whatsoever on the merits of the case or the application under Section 430 of BNSS, if any, filed, which would be considered as per its on merits. .