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2022 Supreme(P&H) 1258
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Pankaj Jain, Ajay Tewari, JJ.
Bhupender Singh & Ors. – Appellants
Versus
Narcotic Control Bureau & Ors. – Respondents
CRM-3773-2019 IN CRA-D-198-DB-2017
Decided On : 12-01-2022
Mr. P.S. Ahluwalia, Advocate Amicus Curiae; Mr. Jashandeep Singh Sandhu, Advocate; for the applicant-appellant in CRM-3773-2019 in CRA-D-198-DB-2017 for the applicant-appellant No.2 in CRM-1065-2021 in CRA-D-1480-DB-2013 for the applicant-appellant in CRM-1672-2021 in CRA-D-706-DB-2017 for the applicant-appellant in CRM-17422-2021 in CRA-D-14-2019; Mr. Kuldeep Choudhary, Advocate for Mr. S.K. Verma, Advocate for the applicant-appellant in CRM-34648-2019 in CRA-D-1013-DB-2017 Mr. Gaurav Rana, Advocate for Mr. Raj Kumar Gupta, Advocate for the applicant-appellant in CRM-40754-2019 in CRA-D-956-DB-2016 Mr. Sandeep Kumar Passi, Advocate for the applicant-appellant in CRM-8746-2020 in CRA-D-1162-DB-2017 Mr. Aditya Sanghi, Advocate and Ms. Shaveta Sanghi, Advocate for the applicant-appellant in CRM-1739-2021 in CRA-D-173-DB-2015 None for the applicant-appellant in CRM-21823-2021 in CRA-D-216-DB-2018 Mr. Lalit Kumar Gupta, Advocate for the applicant-appellant in CRM-22307-2021 in CRA-D-421-DB-2018; Mr. P.M. Anand, Advocate for the applicant-appellant in CRM-22639-2021 in CRA-D-550-DB-2013 Mr. K.S. Dhaliwal, Advocate for the applicants-appellants No.2 & 4 in CRM-22787-2021 in CRA-D-1646-DB-2015 None for the applicant-appellant in CRM-23396-2021 in CRA-D-89-DB-2015 Mr. D.S. Virk, Advocate for Mr. Parveen Chauhan, Advocate for the applicant-appellant in CRM-24183-2021 in CRA-D-166-2021 Ms. Harpreet Kaur, Advocate, for Mr. Navkiran Singh, Advocate for the applicant-appellant in CRM-24715-2021 in CRA-D-658-DB-2017 Ms. Mayuri Lakhanpal Kalia, (Legal Aid Counsel) for the applicant-appellant in CRM-7105-2018 in CRA-D-427-DB-2016 None for the applicant-appellant in CRM-4752-2020 in CRA-D-410-DB-2016 Mr. Ranjit Singh, Advocate for the applicants-appellants in CRM-16534-2019 and CRM-39920-2018 in CRA-D-718-DB-2015 None for the applicant-appellant in CRM-9306-2020 in CRA-D-384-2019 Mr. Raj Kumar Malik, Advocate for the applicant-appellant in CRM-28686-2021 in CRA-D-101-2020; Mr. Rishu Mahajan, Advocate for the applicant-appellant in CRM-7811-2021 in CRA-D-156-2020 None for the applicant-appellant in CRM-31157-2021 in CRA-D-65-DB-2018 None for the applicant-appellant in CRM-33304-2021 in CRA-D-500-2021; Mr. P.S.Sekhon, Advocate for the applicant-appellant No.2 in CRM-11644-2019 in CRA-D-561-DB-2016 Mr. Gurpal Singh Sandhu, Advocate for the applicant-appellant No.2 in CRM-35274-2021 in CRA-D-61-2021 None for the applicant-appellant in CRM-22916-2021 in CRA-D-163-DB-2015 Mr. Fateh Saini, Advocate for the applicant-appellant in CRM-34571-2019 & CRM-34599-2019 in CRA-D-68-DB-2015 Ms. Varinder Kaur Warraich, Junior Standing Counsel for the respondent in CRM-7105-2018 in CRA-D-427-DB-2016 and CRM-4752-2020 in CRA-D-410-DB-2016 Mr. Sanjay Vashisht, Senior Panel Counsel for the respondent-NCB in CRM-3773-2019 in CRA-D-198-DB-2017 Mr. Sandeep Vermani, Addl. A.G., Punjab Mr. Apoorv Garg, D.A.G., Haryana
The stringent provisions of Section 37 of the NDPS Act must be applied in cases where the convict/accused is unable to bring his case within the parameters of Article 21 of the Constitution of India. However, in cases where the convict/accused is able to demonstrate that he has undergone a significant period of incarceration and that the appeal is not likely to be heard in the near future, the Court may consider suspending the sentence.
Headnote:
The High Court of Punjab and Haryana, in a comprehensive judgment, addressed the issue of suspension of sentence in cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court considered various judgments of the Supreme Court and other High Courts on the subject and laid down principles for the grant of bail and suspension of sentence in such cases.
Fact of the Case:
The case involved a bunch of petitions filed by various applicants-appellants, who were convicted under the NDPS Act and were seeking suspension of their sentences pending the disposal of their appeals.
Finding of the Court:
The Court held that the stringent provisions of Section 37 of the NDPS Act, which restrict the grant of bail and suspension of sentence, must be applied in cases where the convict/accused is unable to bring his case within the parameters of Article 21 of the Constitution of India. However, in cases where the convict/accused is able to demonstrate that he has undergone a significant period of incarceration and that the appeal is not likely to be heard in the near future, the Court may consider suspending the sentence.
Issues: 1. Whether the stringent provisions of Section 37 of the NDPS Act should be applied in all cases, irrespective of the circumstances of the case? 2. Whether the Court has the power to suspend the sentence of a convict under the NDPS Act, even if the Public Prosecutor opposes the application? 3. What are the factors that the Court should consider while deciding whether to grant bail or suspend the sentence of a convict under the NDPS Act?
Ratio Decidendi: The Court held that the stringent provisions of Section 37 of the NDPS Act must be applied in cases where the convict/accused is unable to bring his case within the parameters of Article 21 of the Constitution of India. However, in cases where the convict/accused is able to demonstrate that he has undergone a significant period of incarceration and that the appeal is not likely to be heard in the near future, the Court may consider suspending the sentence. The Court also held that it has the power to suspend the sentence of a convict under the NDPS Act, even if the Public Prosecutor opposes the application, if the convict/accused is able to demonstrate that he has undergone a significant period of incarceration and that the appeal is not likely to be heard in the near future.
Final Decision: The Court disposed of the petitions filed by the applicants-appellants by suspending the sentences of those who had undergone a significant period of incarceration and whose appeals were not likely to be heard in the near future. The Court also directed the State of Punjab to file a response on various issues related to the drug menace in the State, including whether the State has any road map in place to fight this menace, whether any scientific study has been conducted on the cause and effect of drug addiction in the State, and whether the State has mapped drug addiction and found the most affected areas/districts.
JUDGMENT
Ajay Tewari, J. - The issue at hand is the consideration for suspension of sentence in cases under the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act'). Section 37 of the Act is reproduced herein below:-
' 37. Offences to be cognizable and non-bailable- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.'
2. It must, however, be noted that the preceding Section 36 of the Act sets the tone as follows:-
'36. Constitution of Special Courts -- (1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification. (2) A Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court.
Explanation: In this sub-section, High Court means the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge. (3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.' and other connected cases
3. One essential factual aspect which has to be noticed is the numerical data relating to the disposal and pendency of appeals under the Act. This Bench vide order dated 05.10.2021 directed the registry to provide year wise details of the pending appeals under the Act. The following information has been provided by the Registry in tabular form:-
Year wise disposal of NDPS cases (CRA-D)
Year | Dismissed | Allowed | Disposed of (Decided with some direction) | Total |
2013 | 1 | 2 | 5 | 8 |
2014 | 5 | 0 | 3 | 8 |
2015 | 7 | 0 | 5 | 12 |
2016 | 3 | 2 | 5 | 10 |
2017 | 6 | 1 | 5 | 12 |
2018 | 0 | 15 | 2 | 17 |
2019 | 29 | 10 | 3 | 42 |
2020 | 6 | 0 | 0 | 6 |
2021 | 8 | 3 | 3 | 14 |
Total | 65 | 33 | 31 | 129. |
Year wise disposal of NDPS cases (CRA-S)
Year | Dismissed | Allowed | Disposed of (Decided with some direction) | Total |
2013 | 118 | 109 | 102 | 329 |
2014 | 116 | 65 | 119 | 300 |
2015 | 165 | 84 | 131 | 380 |
2016 | 71 | 99 | 44 | 214 |
2017 | 44 | 103 | 85 | 232 |
2018 | 64 | 66 | 76 | 206 |
2019 | 47 | 43 | 65 | 155 |
2020 | 36 | 22 | 24 | 82 |
2021 | 10 | 3 | 14 | 27 |
Total | 671 | 594 | 660 | 1925 |
COMPUTER GENERATED REPORT
YEARWISE COUNT OF PENDING NDPS DIVISION BENCH
CRIMINAL APPEALS
FROM YEAR 2013 ONWARDS
SR. NO. | CASE YEAR | COUNT |
1 | 2013 | 57 |
2 | 2014 | 89 |
3 | 2015 | 171 |
4 | 2016 | 155 |
5 | 2017 | 172 |
6 | 2018 | 152 |
7 | 2019 | 116 |
8 | 2020 | 60 |
9 | 2021 | 108 |
|
| TOTAL | 1080 |
COMPUTER GENERATED REPORT
YEARWISE COUNT OF PENDING NDPS SINGLE BENCH
CRIMINAL APPEALS
FROM YEAR 2013 ONWARDS
SR. NO. | CASE YEAR | COUNT |
1 | 2013 | 1433 |
2 | 2014 | 2059 |
3 | 2015 | 2540 |
4 | 2016 | 2198 |
5 | 2017 | 2174 |
6 | 2018 | 1942 |
7 | 2019 | 1291 |
8 | 2020 | 599 |
9 | 2021 | 591 |
|
| TOTAL | 14827 |
4. A perusal of the tables show that from 2013 till date a total number of 129 division bench appeals under the NDPS Act (wherein the sentence was 10 years or more) were decided, out of them 65 were dismissed, 33 were allowed and 31 were disposed of. As regards single bench appeals under the NDPS Act (those where the sentence was upto 10 years) total 1925 appeals were decided, out them 671 were dismissed, 594 were allowed and 660 were disposed of otherwise. The pending position reveals that there are 1080 such appeals which are pending b
