Bai Sushila Lasar Chetiyar And Anr vs U. T. Of Dadra And Nagar Haveli And ...
2023 Latest Caselaw 7457 Bom

2023:BHC-AS:20948                                                       4-3365-2022-IA-F=.doc

                    Uday S. Jagtap


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION

                                     INTERIM APPLICATION NO. 3365 OF 2022
                                                      IN
                                        CRIMINAL APPEAL NO. 422 OF 2022

                    1. Bai Sushila Lasar Chetiyar
                       Age - Adult, Indian Inhabitant,
                       Having address at Flat No.403,
                       Vasudev A Kailash Road, Setiya Nagar
                       Dist. Valsad, Gujrat

                    2. Bai Tehmina Mehboob Ghanchi
                        Age - Adult, Indian Inhabitant
                        Having address at Mullaward, Kara
                        Abrama, Tal. Jelapur, Dist. Navsari,
                        Gujrat
                       (Both at present are in Lajpore
                       Central Prison, Surat)                                   .. Applicants

                               Vs.

                    1. U.T. of Dadra & Nagar Haveli
                       Through S.H.O. Silvassa Police Station
                       C.R. No. 05/2008

                    2. The State of Maharashtra                                 .. Respondents

                                                   .....
                    Mr. Madhusudn Pareek for the applicants / appellants
                    Mr. Hiten Venegavkar a/w Mr. Bharat Mirchandani, standing
                    Counsel for respondent no.1 - Union Territory
                    Mr. A.R. Kapadnis, APP for the respondent - State
                                                   .....

                                               CORAM : PRITHVIRAJ K. CHAVAN, J.

Reserved on : 21st JULY, 2023 Pronounced on : 27th JULY, 2023 ORDER :-

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1. The Special Judge (NDPS) Act Dadara & Nagar Haveli,

Silvassa by the impugned judgment and order dated 8 th June, 2021

convicted applicant nos.1 and 2 of the offences punishable under

Section 20(b)ii(c) r/w Section 8(a)(c) and Section 31 of the

Narcotics Drugs and Psychotropic Substances Act, 1985 ("NDPS

Act") by awarding sentence of 15 years rigorous imprisonment to

the first applicant with fine of Rs.1,50,000/- and 10 years rigorous

imprisonment to the second applicant with fine of Rs.1,00,000/- in

default to suffer RI for six months.

2. An appeal is preferred wherein an application under Section

389 of the Cr.P.C. has been filed by the applicants for suspension of

execution of substantive sentences, pending the appeal.

3. At the outset, this is the second conviction of the first

applicant in light of the fact that the Special Court below has

framed a point as to whether the prosecution proved that the first

applicant was previously convicted under Section 20 of the NDPS

Act by judgment in Special Case No.01 of 2015 by Valsad Court in

Gujrat and by virtue of the said conviction, whether she is liable for

enhanced punishment as per Section 31 of the NDPS Act.

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4. Learned standing Counsel for respondent no.1 - Union

Territory, and the learned Counsel for the applicants are ad-idem

that there is no question of suspension of execution of the sentence

awarded by the impugned judgment qua applicant no.1 in view of

Section 32-A of the NDPS Act.

5. In view of the above, what is to be considered is as to whether

the applicant no.2 can be said to be entitled for the relief claimed

under Section 389 of the Cr.P.C.?

6. I heard Mr. Pareek, learned Counsel for the applicants.

Learned Counsel has mainly emphasized the fact that the second

applicant has already undergone substantive part of the sentence, in

the sense, she had undergone more than half of the sentence

awarded by the trial Court. Next point urged by the learned

Counsel is that the Silvassa Police Station has received a secrete

information on 7th January, 2018 that a lady by name Sushila

Chetiyar (i.e. applicant no.1) was coming from Amli to Silvassa by

an autorickshaw, who is in possession of Ganja. There was no

information qua applicant no.2

7. It is case of the prosecution that when the Investigating

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Agency intercepted autorickshaw No. GJ-15YY-6953 near Alpha

Packaging Company, accused no.3 was found driving the

autorickshaw and a juvenile-in-conflict with law was sitting next to

him while the applicants were occupying rear seat.

8. Two bags with five packets each containing dry flowers like

leaves (Ganja) were found in the said autorickshaw. The

contraband weighed 21.044 kg. The Investigating Officer, as per

usual procedure, collected the samples which were sent to the

Forensic Science Laboratory for examination, after drawing a

panchanama.

9. After filing charge-sheet, the Special Judge framed charges

below Exh.24 as per the aforesaid sections. As many as 11

witnesses were examined and after recording the statement of the

applicants under Section 313 of the Cr.P.C., they are convicted and

sentenced as above.

10. According to the learned Counsel for the applicants, there is

non-compliance of mandatory provisions of Section 42 of the

NDPS Act. The learned trial Court erred in concluding that

Section 42 of the NDPS Act is not applicable. It is argued that the

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learned Special Judge erred in concluding that Section 43 of the

NDPS Act would be attracted in this case. It is further argued that

there is non-compliance of Section 50 of the NDPS Act. It is

submitted that at the time of drawing panchanama, there was no

female pancha witness present in view of the fact that both

applicants are females. Lastly, it is argued that the prosecution has

failed to establish any nexus between the first applicant and the

second applicant and, therefore, the judgment of the Special Court

suffers from illegalities and, therefore, the applicant no.2 ought to

have been acquitted.

11. On the other hand, learned standing Counsel for respondent

no.1 has invited my attention to Section 43 of the NDPS Act by

contending that the trial Court has rightly observed that since the

contraband was seized from an autorickshaw which was in transit

and, therefore, provisions of Section 43 would be attracted and not

Section 42 of the NDPS Act. Section 43(a) of the NDPS Act reads

thus :-

"43. Power of seizure and arrest in public place - Any officer of any of the department mentioned in section 42 may -

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled

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substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, alongwith such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act."

12. Section 42 contemplates the powers of entry, search, seizure

and arrest without warrant or authorization by an Officer, who is

authorized to enter into and search any such building, conveyance

or place. Prima facie, it seems that the Court below had correctly

observed as regards the seizure of the contraband, while it was in

transit in an autorickshaw.

13. In so far as Section 50 of the NDPS Act is concerned,

according to the learned standing Counsel for respondent no.1,

since it was seized from an autorickshaw, there was no reason or

occasion to search person of the applicants by taking them to the

nearest Gazetted Officer or there is no question of even a female

pancha for effecting the search of person of the applicants as

contemplated in Sub-section (4) of Section 50 of the NDPS Act. The

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learned Counsel for respondent no.1 argued that Section 42 of the

NDPS Act contemplates search of a private place. He argued that

PW-6, a lady Police Inspector Smt. Tandel was present at the time of

recording the panchanama. He drew my attention to the

explanation to Section 43 which states that expression "public

place" includes any public conveyance, hotel, shop, or other place

intended for use by, or accessible to the public. Admittedly, an

autorickshaw is a public conveyance and, therefore, seizure has

rightly been made in view of Section 43 of the NDPS Act.

14. Ever since her arrest by the Silvassa Police Station on 7 th

January, 2018, the applicant no.2 is incarcerated. Till the matter is

heard, she has already undergone more than 6 years of sentence out

of total imprisonment of 10 years. Secondly, the prosecution,

prima facie has not shown nexus between the first applicant and the

second applicant and there was nothing to indicate that the first

applicant was accompanied by the second applicant. Merely

because there is no suggestion given to the prosecution witnesses by

the defence in the trial, does not ipso facto mean that there was

nexus between the first and the second applicant.

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15. The appeal is of the year 2022. The appeal is unlikely to be

heard early in view of the pendency of the older appeals. In all

probability, the entire sentence would have been undergone by the

time the appeal is heard.

16. In the aforesaid circumstances, particularly in view of the fact

that the applicant no.2 had undergone more than 6 years of

sentence out of the total sentence awarded by the trial Court, in my

view, this is a fit and proper case where the execution of the

sentence needs to be suspended till the appeal is heard finally.

These are the strong compelling reasons for suspension of execution

of sentence qua the applicant no.2 and her release on bail.

17. The Hon'ble Supreme Court in case of Mossa Koya K.P. Vs.

State (NCT of Delhi)1 has held in para 12, which reads thus :-

"12. We appreciate the submission of the Additional Solicitor General that offences under the NDPS Act are of a serious nature and the case is at the post conviction stage. Yet the Court cannot be unmindful of the fact that the appellant has undergone 8 years out of the total sentence of 10 years. The appeal is unlikely to be heard early. In all probability, the entire sentence would have been undergone by the time the appeal is heard. The decisions on the basis of which the High Court of Delhi 1 2022 (1) Crimes 113 SC

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had declined to grant suspension of sentence, are, at the highest, a broad guideline and cannot be placed on the same pedestal as a statutory interdict. With the pendency of the work in the High Court, it may not be feasible to expedite the disposal of the appeal within a short period."

18. Having considered the aforesaid facts and circumstances of

the case, without expressing any opinion on merits / demerits of the

case, I do not see any reason not to suspend the execution of the

sentence, pending the appeal and to release the applicant on bail.

19. In view of the above observations, the following order is

expedient :-

ORDER

(i) Pending the appeal, execution of the sentence is

suspended on the applicant no.2 executing a P.R. bond in the

sum of Rs.15,000/- with two sureties in the like amount to the

satisfaction of the Registrar Judicial of this Court.

(ii) The applicant no.2 shall attend the Silvassa Police

Station on first day of each month between 10.00 a.m. to

12.00 noon.

(iii) If the applicant no.2 commits two consecutive defaults

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in attending the police station, the prosecution will be at

liberty to pray for cancellation of her bail.

(iv) The applicant no.2 shall surrender her passport, if any,

in the Registry of this Court at the time of furnishing bail.

(v) The applicant no.2 shall furnish her permanent

residential address as well as mobile number to the concerned

police station.

(vi) The application is disposed of in the aforesaid terms.

(PRITHVIRAJ K. CHAVAN, J.)

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