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SUPREME COURT OF INDIA
(From the High Court of Delhi at New Delhi)
DHANANJAYA Y. CHANDRACHUD, A.S. BOPANNA, JJ.
Mossa Koya K.P. – Appellant
Versus
State (NCT of Delhi) – Respondent
Criminal Appeal No. 1562 of 2021, SLP (Crl) No. 8647 of 2021
Decided On : 06-12-2021
Criminal Procedure Code, 1973 – Section 389 – Suspension of sentence – Appellant and co-accused were acquitted by Special Judge, NDPS, Patiala House Courts, New Delhi of charge of joint possession punishable under Section 21(c) of NDPS Act – However, appellant was convicted under Section 29 of NDPS Act and was sentenced to RI for ten years and a fine of Rs 1,00,000 with a default sentence – Single Judge has declined to allow suspension of sentence on the ground that appellant had not completed fifteen months in Jail after order of conviction was passed – As of date, appellant has undergone 8 years and 5 days of custody – Offences under NDPS Act are of a serious nature and case is at post-conviction stage – Yet Court cannot be unmindful of fact that appellant has undergone 8 years out of total sentence of 10 years – Appeal is unlikely to be heard early – In all probability, entire sentence would have been undergone by the time appeal is heard – Decisions on the basis of which High Court of Delhi has declined to grant suspension of sentence, are, at the highest, a broad guideline and cannot be placed on same pedestal as a statutory interdict – With pendency of work in High Court, it may not be feasible to expedite disposal of appeal within a short period – A fit and proper case has been made out for suspension of sentence under Section 389 Cr.P.C. – Impugned order of High Court set aside – Sentence of appellant shall remain suspended under Section 389, Cr.P.C., subject to such terms and conditions as may be imposed by Special Judge, NDPS, Patiala House Courts, New Delhi. (Paras 4, 5, 10, 12, 13 and 14)
Facts of the case:
Appellant has been denied a suspension of sentence under Section 389 of Code of Criminal Procedure 1973 by a Single Judge of the High Court of Delhi by the impugned order dated 18th May 2021. FIR 52 of 2013 was lodged against the appellant for offences punishable under Sections 21, 29, 61 and 85 of the Narcotic Drugs and Psychotropic Substances Act 1985 at Police Station Special Cell on 18/19 November 2013. Besides appellant, two other co-accused were named. The appellant and another co-accused were charged with joint possession of 1 kg of heroin, recovered from a hotel room in Udaipur. The appellant and another co-accused were also charged for conspiracy under Section 29 of the NDPS Act.
Findings of Court:
Sentence of the appellant shall remain suspended under Section 389 Cr.P.C., subject to such terms and conditions as may be imposed by the Special Judge, NDPS, Patiala House Courts, New Delhi. The appellant would cooperate in expeditious disposal of the appeal and shall not apply for adjournment when the matter is taken up.
Result : Appeal allowed.
ORDER :
1. Leave granted.
2. The appellant has been denied a suspension of sentence under Section 389 of the Code of Criminal Procedure 19731 [“Cr.P.C.”] by a Single Judge of the High Court of Delhi by the impugned order dated 18 May 2021.
3. FIR 52 of 2013 was lodged against the appellant for offences punishable under Sections 21, 29, 61 and 85 of Narcotic Drugs and Psychotropic Substances Act 19852 [“NDPS Act”] at Police Station Special Cell on 18/19 November 2013. Besides the appellant, two other co-accused were named. The appellant and another co-accused were charged with joint possession of 1 kg of heroin, recovered from a hotel room in Udaipur. The appellant and another co-accused were also charged for conspiracy under Section 29 of the NDPS Act.
4. The appellant and the co-accused were acquitted by the Special Judge, NDPS, Patiala House Courts, New Delhi of the charge of joint possession punishable under Section 21(c) of the NDPS Act. However, the appellant was convicted under Section 29 of the NDPS Act and was sentenced to RI for ten years and a fine of Rs. 1,00,000 with a default sentence.
5. The appellant has filed an appeal through the Legal Aid Cell before the High Court and applied for suspension of sentence. By the impugned order dated 18 May 2021, the Single Judge has declined to allow a suspension of sentence on the ground that the appellant had not completed fifteen months in Jail after the order of conviction was passed. The High Court noted that, as a matter of fact, according to the nominal roll dated 18 February 2021, he had undergone seven years and two months in custody.
6. In taking the above view, the High Court relied on the following extract from the judgment of the Punjab and Haryana High Court in Daler Singh vs. State of Punjab, (2006) SCC Online P&H 1591:
(i) Where the convict is sentenced for more than ten years for having in his conscious possession commercial quantity of contraband, he shall be entitled to bail if he has already undergone a total sentence of six years, which must include at least fifteen months after conviction.
(ii) Where the convict is sentenced for ten years for having in his conscious possession commercial quantity of the contraband, he shall be entitled to bail if he has already undergone a total sentence of four years, which must include at least fifteen months after conviction.
(iii) Where the convict is sentenced for ten years for having in his conscious possession, merely marginally more than non-commercial quantity, as classified in the table, he shall be entitled to bail if he has already undergone a total sentence of three years, which must include at least twelve months after conviction.
(iv) The convict who, according to the allegations, is not arrested at the spot and booked subsequently during the investigation of the case but his case is not covered by the offences punishable under section 25, 27-A and 29 of the Act, for which in any case the aforesaid Clauses No. (i) to (iii) shall apply as the case may be, he shall be entitled to bail if he has already undergone a total sentence of two years, which must include at least twelve months after conviction.”
7. The Single Judge also observed that in Mohd Arif alias Guddu vs. State NCT of Delhi [Criminal Appeal No. 293 of 2017, order dated 19 May 2020] the High Court of Delhi has taken the view that where the convict is sentenced for ten years for having in his conscious possession a commercial quantity of the contraband, he shall be entitled to bail after undergoing a total sentence of four years which must include at least fifteen months after conviction.
8. While entertaining the Special Leave Petition on 18 November 2021 and issuing notice, this Court adverted on the following submissions which were urged by
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