JUDGMENT :

Dhananjaya Y Chandrachud, J

1. Leave granted.

2. This appeal arises from a judgment of a learned Single Judge of the High Court of Delhi dated 28 July 2020, by which the application filed by the respondent seeking suspension of sentence under Section 389(1) of the Code of Criminal Procedure 1973¹[“CrPC”] has been allowed.

3. The respondent has been convicted of offences punishable under Sections 23(c) and 25A of the Narcotic Drugs and Psychotropic Substances Act 1985²[“NDPS Act”]. He has been sentenced to suffer rigorous imprisonment for ten years in respect of the offence under Section 23(c) and for three years under the provisions of Section 25A, apart from fine.

4. Briefly stated, on 2 December 2015, the IO of the Narcotics Control Bureau, Delhi Zonal Unit received a phone call from DHL Courier that two parcels were lying in the office and were suspected to contain narcotic drugs. Accordingly, a team of the Narcotics Control Bureau, Delhi Zonal Unit, reached the office of DHL. Two parcels were seized. The parcels were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. The parcels were booked to a foreign destination, at the behest of a foreign national, by the co-accused who was an employee of the respondent. The respondent himself is a proprietor of the courier agency which had accepted the parcels initially for booking from the foreign national.

5. The Special Judge, after considering the entirety of the evidence on the record, came to the conclusion that the offence stood established as against the respondent, but the benefit of doubt was granted to the co-accused on the ground that he was only an employee who was acting at the behest of the respondent. An appeal has been filed before the High Court of Delhi by the respondent. While considering the application for suspending the sentence, the learned Single Judge recorded the following submissions of the respondent in paragraph 2 of the impugned order :

“2. Learned counsel for the appellant submits that out of the total sentence of 10 years awarded to the appellant by the Trial Court, the appellant has already undergone a period of about 4 years and 4 months. He has taken the Court through the records to show that though the appellant who was owner of the courier company has been convicted and the employee of the company who had received the parcels, has been acquitted on the same set of evidence. It is further submitted that no investigation was made to arrest the consignor. He also submits that since the appeal is likely to take some time to come up for final hearing, no useful purpose would be served in keeping the appellant in jail till such time and prays that the appellant's sentence may be suspended during the pendency of the appeal.”

6. The application was opposed on behalf of the Narcotics Control Bureau by the Senior Standing Counsel, who appeared to oppose the suspension of sentence. The High Court, while passing an order of suspension of sentence, indicated its reasons in paragraph 4 of the order, which reads as follows:

“4. Looking into the facts and circumstances of the case and the period undergone by the appellant and the fact that the appeal is not likely to be taken for hearing in near future on account of disruption caused by COVID-19 pandemic, the application is allowed and the sentence of the appellant is suspended during the pendency of the appeal on his furnishing a personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the concerned Jail Superintendent/Duty Magistrate, subject to the following further conditions:

(i) The appellant will not leave NCT of Delhi without prior permission of the Court.

(ii) The appellant shall appear before the Court as and when the appeal is taken up for final hearing.

(iii) In case of change of address, the appellant shall promptly inform the same to the concerned IO as well as to the Court.”

7. Mr Aman Lekhi, learned Additional Solicitor General