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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
M.S. Ramachandra Rao, Sukhvinder Kaur, JJ.
Talim Khan – Appellant
Versus
Intelligence Officer – Respondent
CRM-44634-2021 In CRA-D-932-2019
Decided On : 15-03-2023
Suspension of Sentence - NDPS Case - NDPS Act, 1985, Section 15(c) - Summary: The court considered the application for suspension of sentence filed under section 389(2) of Cr.P.C. by the applicant who was convicted under section 15(c) of the NDPS Act, 1985. The court analyzed the submissions of both parties and referred to various legal provisions and precedents including the guidelines laid down in Daler Singh vs. State of Punjab and other relevant decisions. The court also took into account the overcrowding in prisons as an additional factor in considering the grant of relief of suspension of sentence to convicts under the NDPS Act. The court ultimately allowed the application and suspended the rest of the sentence imposed on the applicant.
Fact of the Case:
The applicant filed an application for suspension of sentence under section 389(2) of Cr.P.C. after being convicted under section 15(c) of the NDPS Act, 1985 and sentenced to 12 years of custody and a fine of Rs.1 lakh. The applicant had already undergone 5 and a half years of custody including post-conviction custody of more than 2 years.
Finding of the Court:
The court found that the applicant had already undergone a substantial period of custody and that the delay in the disposal of the appeal was a ground for consideration for the grant of relief of suspension of sentence. The court also considered the overcrowding in prisons as an additional factor in granting the relief.
Issues: The issues involved in the case included the wrongful conviction of the applicant, the perversity of the judgment of the Special Court, and the possibility of the appeal becoming infructuous if the applicant is denied the benefit of suspension of the rest of his sentence.
Ratio Decidendi: The court relied on the guidelines laid down in Daler Singh vs. State of Punjab and other relevant decisions to determine the eligibility for the grant of relief of suspension of sentence. The court also considered the overcrowding in prisons as an additional factor in relaxing the norm for consideration of grant of relief of suspension of sentence.
Final Decision: The court allowed the application and suspended the rest of the sentence imposed on the applicant by the Judge, Special Court, subject to the applicant furnishing bail bonds/surety bonds to the satisfaction of Duty Magistrate/Chief Judicial Magistrate concerned.
JUDGMENT
M.S. Ramachandra Rao, J. - This application is filed under section 389 (2) of Cr.P.C. by the applicant seeking suspension of sentence imposed on him by the Judge, Special Court, Ludhiana in NDPS case CIS No. NDPS-224 vide decision dt.09.10.2019 convicting him under section 15(c) of the NDPS Act, 1985 (for short 'the Act') for a period of 12 years and also to pay fine of Rs.1 lakh.
2. The applicant had challenged the said judgment in CRA-D-932-2019 in this Court. This Court had admitted the Appeal on 04.11.2019 and had stayed the recovery of fine during the pendency of the Appeal.
3. Notice in the application for suspension of sentence was issued on 26.04.2022.
4. Custody certificate dt.05.01.2023 was filed by Sh. Sandeep Vermani, Addl. A.G., Punjab which indicate that the applicant had undergone total period of custody of 5 years, 3 months and 23days by that date including custody of 2 years and 24 days post conviction. By now, his period of custody would be 5 years and 6 months and post conviction custody would be 2 years and 3 months.
5. Counsel for the applicant contended that the applicant had been wrongly convicted by the Special Court under section 15(c) of the Act; that the judgment of the Special Court is perverse; there is no direct evidence and there are several contradictions in the statements of the prosecution witnesses which were not considered properly by the Special Court; in any event no reasons have been assigned by the Special Court for imposing punishment on the applicant beyond the minimum period of 10 years as mandated by Section 32-B of the Act; there is no possibility of the Appeal being heard in the near future and there is every danger of the Appeal becoming infructuous if the applicant is denied benefit of suspension of rest of his sentence. He contended that such relief can be granted in view of the decision of the Division Bench of this Court in Daler Singh vs. State of Punjab, 2007(1) RCR (Criminal) 316 Full Bench of this Court in Dalip Singh alias Deepa vs. State of Punjab, 2010 (2) RCR (Criminal) 566 Mangat Rai vs. State of Punjab[3], Bhola Singh and others vs. State of Punjab[4], Sandeep Kumar vs. State of Punjab[5], Balbir Singh vs. State of Punjab[6] and Raghvir Singh vs. State of Punjab[7]. He contended that the applicant had right to speedy trial under Article 21 of the Constitution of India which would also extend to the speedy hearing of the Appeal against his conviction by this Court, and once that is not possible, he ought to be granted relief of suspension of sentence.
[3] Order dt. 17.10.2022 in CRM-40508-2021 in CRA-D-166-DB-2017
[4] Order dt. 11.11.2022 in CRM-38843-2022 in CRA-D-1136-DB-2018
[5] Order dt. 08.12.2017 in CRM-30500-2017 in CRA-D-597-DB-2015
[6] Order dt. 13.12.2021 in CRM-14782-2021 in CRA-D-176-DB-2021
[7] Order dt. 21.09.2020 in CRM-21619-2020 in CRA-D-1170-DB-2018
6. Written reply was filed by the respondent opposing grant of relief of suspension of sentence to the applicant contending that the seizure in the instant case is of 15 plastic bags of poppy straw of total weight around 600 kilograms; that without any valid permit of licence, the applicant and another were carrying it in a car container truck HR-38-U-6495 and were caught red handed by the DRI Officers on 13.09.2017; that they gave voluntary statements on 14.09.2017 that they were knowingly trafficking the said illegally narcotic product; that the evidence on record justified their conviction by the Special Court; that the Supreme Court in Budhiyarin Bai vs. State of Chhattisgarh, 2022 (4) RCR (Criminal) 339 had held that no leniency should be shown to accused persons who are found guilty under the NDPS Act and in other cases it has held that period of custody undergone cannot be a criterion to suspend the sentence and grant bail. It is also contended that in view of the stringent provision of Section 37 of the Act, mere passage of time cannot be a reason for suspension of sentence.
AI
The main legal point established in the judgment is the consideration of the delay in the disposal of the appeal as a ground for the grant of relief of suspension of sentence, along with the relaxati....
Suspension of sentence should be considered liberally unless there is any statutory restriction, and the appellate Court has the discretion to suspend a sentence awarded under the NDPS Act, emphasizi....
Sentence can be suspended and bail granted to accused where hearing of appeal is likely to take further more time.
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.....
Suspension of sentence and grant of bail – A person who had undergone five years of pre-convict custody is entitled to be released on bail, on touchstone of Article 21 of Constitution of India.
The court established that non-compliance with procedural requirements under the NDPS Act can render evidence inadmissible, and prolonged incarceration can be a valid ground for suspending a sentence....
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