Hegedus Lahel Csaba vs Union Of India (Uoi)
2005 Latest Caselaw 96 Del

JUDGMENT

R.C. Jain, J.

1. This is an application under Section 389 read with Section 482 of the Cr.P.C. for temporary suspension of the sentence of the appellant for a period of three months on the ground that he wants to marry a certain Ms. Elisabeth Gulbrandsen.

2. The appellant stands convicted for the offence under Section 20(B)(ii) and Section 23 read with Section 28 of the NDPS Act (in short the Act) and has been sentenced to undergo RI for ten years and to pay a fine of Rs. 1.00 lac and in default of payment of fine, to further undergo RI for six months. An appeal filed by the appellant against his conviction and sentence is pending disposal. The application has been made with the averments that at the time of his arrest the appellant was to marry his fiane Ms. Elisabeth Gulbrandsen but due to his arrest, the marriage ceremony could not take place. The appellant has an old father aged about 80 years and wants the appellant to marry in his lifetime. The fiance of the appellant has waited for more than seven and a half years for the appellant to come out of the jail but she is now prepared to marry him even when he is in custody. The British High Commission has issued a certificate stating that there is no general objection to the British nationals marry in India. The marriage is proposed to be solemnized at a Church in Delhi in accordance with the rites of the parties. For the solemnization of the marriage etc., it is prayed that the sentence of the appellant be temporarily suspended for three months and he be released on bail.

3. The application is opposed on behalf of the respondent / UOI and reply has been filed stating that earlier two applications for suspension of sentence moved on behalf of the appellant have been dismissed. It is stated that the appellant is a British national having been convicted and sentenced for serious offences and keeping in view the past sad experience of the Department that whenever a foreigner has been granted bail, he/she absconded, there is every possibility that the appellant, who has no interest in India, shall not be available if his sentence is suspended and he is released on interim bail. The ground of marriage is contested. However, it is stated that if the appellant wants to marry, the Department has no objection, but the marriage should take place while the appellant is in custody and the Department has no objection if the Superintendent Jail is directed to have the appellant escorted to the Church by guards in plain clothes. It is pleaded that suspension of sentence is not required for the purpose of marriage and in the alternative, it is pleaded that if the fiance of the appellant had waited for seven and a half years, she can wait a little more till such time the appellant undergoes the remaining sentence. On the strength of several authorities rendered by the Supreme Court and this Court, it is urged that the appellant is not entitled to even temporary suspension and release on bail.

4. I have heard Mr. Harjinder Singh, learned counsel for the appellant and Mr. Satish Aggarwal, learned counsel representing the respondent/UOI and have given my thoughtful consideration to their respective submissions. In the case in hand there is no denial of the factual position that the appellant is a British national; he was arrested and prosecuted for having been found in possession of commercial quantity of narcotic drug and has been found guilty and sentenced, as above, and that by now he has unergone about seven and a half years sentence including the under trial period and that an appeal filed by the appellant against the said conviction and sentence is pending disposal in this Court; the two earlier applications moved by the appellant for suspension of his sentence till the disposal of the appeal have not found favor with the Court. Keeping this background in view, the question for consideration is as to whether it is a fit case where the sentence of the appellant should be suspended temporarily and he be released on bail on the ground of his proposed marriage.

5. There is no denial of the legal position that despite the embargo of Section 37 of the Act, this Court has the jurisdiction and power to suspend the sentence of a convict temporarily on good ground or for compelling reasons. There is also no denial of the legal position that even a foreign national while in carcinated has certain fundamental rights and is entitled to protection and enforcement thereof. The right to marry can be said to be one of those rights. Consequently, the appellant has the right to marry either an Indian or foreign national. It is pertinent to notice here that although it is the case of the appellant that he was engaged with Ms. Elisabeth Gulbrandsen prior to his arrest in this country, surprisingly no prayer was made by him for his release on bail either during trial or post-conviction during the past seven and a half years on the ground that he wanted to marry Ms. Elisabeth Gulbrandsen and that his father is quite aged and wants to see that the appellant is married. Equallit is true that several appellants whose sentences were suspended and who were released on bail, absconded and did not return to undergo the remainder sentence. The appellant is a British national and has no roots and interest in this country and, therefore, there is every likelihood of his fleeing from the country and course of justice in case his sentence is suspended even temporarily and he might not be available to undergo the remainder sentence. These factors dissuade this Court in exercising its discretion so as to suspend the sentence of the appellant even temporarily for a smaller period. The application is, accordingly, dismissed. However, in case the appellant is keen to get the marriage conducted with Ms. Elisabeth Gulbrandsen, he will notify the date, time and venue of such marriage to the Superintendent Jail, Tihar and in that event the concerned Superintendent Jail, Tihar is hereby directed to send the appellant to the venue of the marriage for about six hours time along with plain clotes security guards. After the marriage is conducted, the appellant shall be brought back to the jail.Crl.A. 453/2000 List for hearing in due course.