The main legal point established in the judgment is that the accused can choose between surety bonds and fixed deposits as a condition for bail and suspension of sentence.

JUDGMENT

1. The applicant-appellant, a resident of West Bengal, convicted for possessing 220 grams of heroin (Diacetylmorphine), which is an intermediate quantity, and sentenced to imprisonment for ten years and a fine of Rs. One Lac has come up before this Court under section 389 of Code of Criminal Procedure, 1973 (CrPC) seeking suspension of sentence.

2. The facts relevant in deciding the present application is that on 07.11.2017, the police party received secret information that three persons, who were present in a room, are involved in drug trafficking, and at that point of time if a raid is conducted, they could be apprehended. After completing the procedural requirements, the police raided the said place and found two persons, including the applicant-Mahidul Sheikh. The room was searched in the presence of the owner of the premises, and one bag was found. The search of the bag led to the recovery of 220 grams of heroin. Apart from that, the police also allegedly recovered Rs.14,39,780/-. Subsequently, the police registered the FIR captioned above and arrested the accused. During the trial, learned Special Judge allowed the prosecution and convicted the applicant under Section 21(b) NDPS Act. The Court sentenced him to undergo rigorous imprisonment for ten years and pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year further. The cash amount recovered was ordered to be forfeited to the State.

3. Learned Counsel for the applicant-convict argued that the quantity of 220 grams of heroin (Diacetylmorphine) is less than commercial and thus, rigors of section 37 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) do not apply, and application for suspension of sentence is to be considered similar to the general offences. Learned Counsel for the applicant-convict has further argued that the applicant is the first offender and has already undergone two years of the sentence, and the quantity involved is intermediate, whereas the Court has imposed the maximum sentence apart from forfeiting the money recovered from the house.

4. Mr. Randeep S. Dhull, Ld. Counsel submitted that the applicant be permitted to offer a fixed deposit in place of surety. He further submits that the fear of forfeiture of money will encourage him to surrender if this Court upholds the conviction.

5. Mr. Manish Bansal, Ld. Counsel appearing for State opposes the suspension of sentence and contends that grant of bail encourages the drug peddlers, and the drug menace is spreading day by day. The more forceful contention on behalf of the State is that the convict resides in a faraway place, and in case of dismissal of the appeal, it would be challenging to arrest him if he does not surrender to face the sentence.

6. Mr. Jasdev Singh Mehndiratta, Ld. Amicus Curiae, submitted that not suspending the sentence only because the convict is a native of a distant State would violate Article 21 of the Constitution India, which extends to all persons residing anywhere in India and even encompasses a foreigner. Ld. Amicus further argued that given the advent of online identification, while granting bail with sureties, the "Court" or "the Arresting Officer" should give a choice to the accused to either furnish surety bonds or give a fixed deposit, impliedly informing the accused of Section 445 CrPC.

7. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines a small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All Sections in the NDPS Act, which specify an offence,