NDPS Suspension of Sentence (Bail): Further incarceration would be violative of the right of the applicant-appellant enshrined under Article 21 of the Constitution of India :

Accused convicted for the offence punishable under NDPS Act for 10 years. Filed an application for suspension of sentence during the pendency of appeal before High Court. (BAIL). Hon’ble High Court after considering each & every fact of the case and considering the violation of right of petitioner/convict under Article 21 of the Constitution of India, suspended the sentence of accused/convict/petitioner, while observing “Further incarceration would be violative of the right of the applicant-appellant enshrined under Article 21 of the Constitution of India”

Advocate Anoop Verma
Punjab and Haryana High Court, Chandigarh

CRM-7465-2020 in

CRA-S-647-SB-2017

253 CRM-7465-2020 in

CRA-S-647-SB-2017

RAM KUMAR VS STATE OF PUNJAB

Present: Mr. Anoop Verma, Advocate for Mr. Raman Mohinder Sharma, Advocate

for the applicant-appellant.

Mr.Iqbal Singh Mann, DAG, Punjab.

***

This is an application under Section 389 Cr.P.C. for suspension of sentence of the applicant-appellant during the pendency of the present appeal. Learned counsel for the applicant-appellant has submitted that the applicant-appellant has been convicted under Section 15(c) of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (in short “NDPS Act”) by the Judge, Special Court, Fazilka, vide judgment dated 19.09.2016 and sentenced to undergo rigorous imprisonment for 10 years in FIR No.52 dated 01.06.2013, registered under Section 15 of the NDPS Act, at Police Station Bahaw-wala, District Fazilka. It is further submitted that out of the sentence of 10 years, the applicant-appellant has already undergone 4 years,

5 months and 24 days of actual custody and that the applicant-appellant is not involved in any other case. The appeal is of the year 2017 and the same is not likely to be heard in near future. It is also stated that keeping the applicant-appellant in further incarceration would be in violation of his right under Article 21 of the Constitution of India as held by the Division Bench of this Court in CRM-3773-2019 in CRA-D-198-DB-2017 in case titled as “Bhupender Singh Vs. Narcotic Control Bureau”

The learned State counsel, on the other hand, has opposed the present application and has produced the custody certificate, as per which, the period of custody, as stated by learned counsel for the applicant appellant, stands reaffirmed.

This Court has heard learned counsel for the parties and has perused the paper-book. The Division Bench of this Court in Bhupender Singh’s case (supra) has held as under;-

“27. Thus we find that in the year 1994, the Supreme Court held that a person who had undergone five years of preconvict custody was entitled to be released on bail, on the touchstone of Article 21 of the Constitution of India. Though this judgment related to undertrials and only one time directions were issued, however, the directions in no way can be said to be against the legislative intent but are in furtherence of Article 21 of the Consitution of India. Therefore, it will also not be

inappropriate if similar principles are followed with some variations and modifications in cases relating to convicts who are languishing in jails for the reasons that their appeals are not likely to be heard for a considerable period.

28. Then in P. Ramachandra Rao, where the accused was found to have amassed assets disproportionate to his known sources of income and the charge-sheet was filed for offences under Sections 13(1) (e) read with Section 13(2) of the Prevention of Corruption Act, 1988, the constitutional bench of the Supreme Court stressed upon speedy trial at the touchstone of Articles 21, 19 and 14 and the Preamble of the Constitution as also from the Directive Principles of State Policy.

29. Then we have Surinder Singh @ Shingara Singh, where the convict was awarded the sentence of life imprisonment for an offence under Section 302 IPC and the interim order granting him bail had been made absolute. However, the Supreme Court again stressed upon speedy trial and specifically observed that the difficulty arises when the appeal preferred by such a convict cannot be disposed of within a reasonable time.

30. Then came Tule Ram, wherein a full bench of this Court after perusing the data provided with regard to the pendency or disposal of appeals under the Act went into the question as to what was the extent of the power for suspension of sentence which could be exercised by the High Court while dealing with the applications for suspension of sentence in appeals under the NDPS Act. The bench held that the Appellate Court had no power to suspend sentence during pendency of the appeal and that the Act makes no provision for post-conviction suspension of sentence. The exception, however, that was carved out was that when there is delay in disposal of the appeal which is not attributable to the convict, the Court may pass such orders as the convict may be entitled to in view of the provisions of Article 21 of the Constitution of India.

31. Thereafter, in Daler Singh, where the recovery was of 35 kg of poppy husk and the convict had undergone 7 years out of the total sentence of 12 years awarded under the Act, a division bench of this Court had suspended the sentence and had also laid down some principles for releasing the convicts under the NDPS Act at the touchstone of Article 21 of the Constitution of India.

32. Then in Dalip Singh, which was a case of murder, certain guidelines had been laid down by a full bench of this Court for the purpose of bail during trial and for suspension of sentence pending appeal in the spirit of Article 21 of the Consitution of India while considering various other factors of the case.

xxx-xxx-xxx

35. Then we have K.A. Najeeb, wherein the accused was facing trial under UPA, IPC and Explosives substances Act, the Supreme Court granted bail after 4 years of custody while holding that once it is obvious that a timely trial would not be

possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail 37. Then in Pawan Kumar and another, where the recovery was of 15.5 kg of opium, the Supreme Court upheld the decision of this Court granting suspension of sentence to one of

the convicts who had undergone 7½ years out of the total sentence of 15 years awarded under the Act.

38. Then in Mahamood Kurdeya, where the recovery was of 50 kg 800 grams of contraband from the Syrian national and who had undergone 3 years 3 months of custody, the Supreme Court had granted bail on the ground that even the trial had not been commenced till now.

xxx-xxx-xxx

41. The salient factor in all the cases relied upon by the learned counsel for the respondents is that in none of those cases the convict/accused could even argue that his case was  covered under Article 21 of the Constitution of India. None of the cases fell under the categories enumerated either in Supreme Court Legal Aid Committee or Daler Singh. The maximum custody in these cases was of Lokesh Chadha and Ratan Kumar Vishwas where also they had undergone less than 5 years of the sentence. In none of these cases, the Supreme Court disagreed with even one of the decisions relied upon by the learned counsel for the applicants-appellants. Thus, it has to be concluded that there is no divergence of opinion as sought to be projected by the learned counsel for the respondents-States.

Where the convict/accused is not able to bring his case within the parameters of Article 21 of the Constitution of India the stringent provisions of Section 37 of the Act have to be applied.

42. In these circumstances, we would now examine all the cases under the parameters laid down in Supreme Court Legal Aid Committee and Daler Singh, of course with the clear understanding that the directions made therein are not mandatory and have to serve as guidelines. Those cases where the claim for suspension of sentence is made out on the basis of long custody would be disposed of by the present order while those where the claim is not supported by long custody would be segregated and listed for hearing individually. For convenience,

the facts of each case are briefly stated.

(1) CRM-3773-2019 in CRA-D-198-DB-2017

Custody certificate dated 27.12.2021 filed by way of affidavit of Yogesh Jain, Deputy Superintendent, Central Jail, Ferozepur is taken on record. As per the custody certificate, the applicant-appellant has undergone actual sentence of more than 8 years & 11 months out of the total sentence of 15 years. Further in another FIR registered under the NDPS Act the applicant-appellant is already on bail. The recovery in the present case was of 14 kg 80 gm of heroin. Considering the period of incarceration already suffered by the applicant-appellant in the present case and the fact that the appeal is not likely to be heard in the near future and that the present case is covered by Daler Singh’s case (supra), we deem it appropriate to suspend the sentence of the applicantappellant-Bhupender Singh. Ordered accordingly. Bail to the satisfaction of the concerned C.J.M/Illaqua Magistrate/Duty Magistrate.

Application stands disposed of.

xxx-xxx-xxx

(3) CRM-40754-2019 in CRA-D-956-DB-2016

Custody certificate dated 29.12.2021 filed by way of affidavit of Satnam Singh, PPS, Additional Superintendent, Central Jail, Ludhiana is taken on record. As per the custody certificate, the applicant-appellant has undergone actual sentence of more than 6 years & 5 months out of the total sentence of 12 years. Further the applicant-appellant was 14 days’ late from the date of surrender in jail. The recovery in the present case was of 1440 kg of poppy husk. Considering the period of incarceration already suffered by the applicant-appellant in the present case and the fact that the appeal is not likely to be heard in the near future and that the present case is covered by Daler Singh’s case (supra), we deem it appropriate to suspend the sentence of the applicantappellant-Charan Singh. Ordered accordingly. Bail to the satisfaction of the concerned C.J.M/Illaqua Magistrate/Duty Magistrate.

Application stands disposed of.

xxx-xxx-xxx

(11) CRM-22787-2021 in CRA-D-1646-DB-2015

Custody certificates dated 29.11.2021 & 03.01.2022 filed by way of affidavit of Sewa Singh, Deputy Superintendent, District Prison (Rohtak), Haryana are taken on record. As per the custody certificate, the applicant-appellant No.2-Virender

has undergone actual sentence of more than 8 years & 10 months out of the total sentence of 20 years and the applicantappellant No.4-Lalan Chaudhary has undergone actual sentence of more than 10 years & 9 months out of the total sentence of 20 years. The recovery in the present case was of 231 kgs of Charas.

Considering the period of incarceration already suffered by the applicant-appellants in the present case and the fact that the appeal is not likely to be heard in the near future and that the present case is covered by Daler Singh’s case (supra), we deem it appropriate to suspend the sentence of the applicantappellant No.2-Virender Singh and the applicant-appellant No.4-Lalan Chaudhary. Ordered accordingly. Bail to the satisfaction of the concerned C.J.M/Illaqua Magistrate/Duty Magistrate.

Application stands disposed of

xxx-xxx-xxx

(16) CRM-7105-2018 in CRA-D-427-DB-2016

Custody certificate dated 29.12.2021 filed by way of affidavit of Iqbal Singh Brar, Superintendent, District Prison Sri Muktsar Sahib, Punjab is taken on record. As per the custody certificate, the applicant appellant has undergone actual sentence of more than 8 years & 5 months out of the total sentence of 15 years. The recovery in the present case was of 57 kgs 982 gms of heroin alongwith 2 pistols, 52 live cartridges and 3 magazines. Considering the period of incarceration already suffered by the applicant-appellant in the present case and the fact that the appeal is not likely to be heard in the near future and that the present case is covered by Daler Singh’s case (supra), we deem it appropriate to suspend the sentence of the applicantappellant-Khan Singh. Ordered accordingly. Bail to the satisfaction of the concerned C.J.M/Illaqua Magistrate/Duty Magistrate. Application stands disposed of.

xxx-xxx-xxx

(26) CRM-22916-2021 in CRA-D-163-DB-2015

Custody certificate dated 29.11.2021 filed by way of affidavit of Shailakshi Bhardwaj, Deputy Superintednent of Prison, District Prison Karna, Haryana is taken on record. As per the custody certificate, the applicant-appellant has undergone actual sentence of more than 8 years & 4 months out of the total sentence of 14 years. The recovery in the present case was of 104 kgs 600 gms of charas. Considering the period of incarceration already suffered by the applicant-appellant in the present case and the fact that the appeal is not likely to be heard in the near future and that the present case is covered by Daler Singh’s case (supra), we deem it appropriate to suspend the sentence of the applicantappellant. Ordered accordingly. Bail to the satisfaction of the concerned C.J.M/Illaqua Magistrate/Duty Magistrate.

Application stands disposed of.

(27) CRM-34571 & 34599-2019

 in CRA-D-68-DB-2015 (O&M) Custody certificate dated 29.11.2021 filed by way of affidavit of Surender Kumar, DSP1, Deputy Superintendent, District Prison Kaithal, Haryana is taken on record. As per the custody certificate, the applicant-appellant has undergone actual sentence of almost 6 years out of the total sentence of 12 years. The recovery in the present case was of 1 kg 700 gms of charas.

Considering the period of incarceration already suffered by the applicant-appellant in the present case and the fact that the appeal is not likely to be heard in the near future, we deem it appropriate to suspend the sentence of the applicant-appellant.

Ordered accordingly. Bail to the satisfaction of the concerned C.J.M/Illaqua Magistrate/Duty Magistrate. Recovery of fine shall remain stayed during the pendency of appeal. Applications stand disposed of.

In the present case, out of the sentence of 10 years, the applicant-appellant has already undergone 4 years, 05 months and 24 days of actual custody and the appeal being of the year 2017, is not likely to be heard in near future. The applicant-appellant is stated to be not involved in any other case and thus, keeping the present applicant-appellant in further incarceration would be violative of the right of the applicant-appellant enshrined under Article 21 of the Constitution of India.

Keeping in view the above said facts and circumstances, the present application for suspension of sentence is allowed and the remaining sentence imposed upon the applicant-appellant is ordered to be suspended during the pendency of the appeal on his furnishing personal/surety bonds to the satisfaction of the concerned Chief Judicial Magistrate/Duty Magistrate and subject to his not being required in any other case.

(VIKAS BAHL)

 JUDGE

November 24, 2022.

Best Advocate in High Court, Chandigarh

Leave a Reply

Your email address will not be published. Required fields are marked *

%d bloggers like this: