Hegedus Lahel Csaba vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 2162 Del

JUDGMENT

R.C. Chopra, J.

1. This application for suspension of sentence during the pendency of the appeal has been moved on behalf of the appellant who stands convicted under Section 20(B)(ii) and Section 23 read with Section 28 of the NDPS Act (hereinafter referred to as "the Act" only). The appellant was sentenced by the Trial Court to undergo RI for 10 years and pay a fine of Rs. 1 lakh, in default of which he was ordered to undergo further RI for six months.

2. The appellant who is a foreign national was a transit passenger from Nepal to Amsterdam. On the intervening night of 26th and 27th June, 1997, he was searched at IGI Airport New Delhi and was found to be in possession of 13.476 kgs. Charas. The appellant was put to trial. Learned Trial Judge after considering the prosecution evidence and the defense of the appellant convicted and sentenced him as aforesaid. His appeal against conviction and sentence is pending disposal before this Court.

3. I have heard learned counsel for the appellant and learned counsel for the respondent. I have gone through the records.

4. Learned counsel for the appellant has vehemently argued for release of the appellant on bail on the ground that he has already undergone about 5 years sentence but still there is no immediate likelihood of the disposal of his appeal. It is submitted that the appellant was a transit passenger from Nepal and was not to enter India and the alleged recovery was made from his bag which was in open condition. Relying upon the judgment of the Apex Court in Kartar Singh v. State of Punjab , he argues that the accused has a right not only of speedy trial but speedy disposal of the appeal also and as such during the pendency of the appeal which is not likely to be disposed of soon, his sentence should be suspended.

5. Learned counsel for the appellant contends that the bar created by Section 37 of the Act gets lifted as soon as the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of committing the offence and that he is not likely to commit any offence while on bail and for the purpose of satisfaction regarding existence of reasonable grounds the Court is not required to ask for proof of innocence but only a preponderance of probability that the accused may be innocent.

6. Learned counsel for the respondent on the other hand has opposed the prayer of the appellant-petitioner by pointing out that already two applications moved on behalf of the appellant-petitioner for suspension of sentence stand dismissed. It is also submitted that the appellant is a foreigner who has been held guilty by the Trail Court on the basis of the evidence led by the prosecution and in case his sentence of imprisonment is suspended there is every likelihood that he may abscond and will not be available for serving remaining part of his sentence.

7. After considering the submissions made by learned counsel for the parties, this Court fully agrees with the submissions made by learned counsel for the appellant that the right of speedy trial includes the right of speedy disposal of appeal also and for recording satisfaction that there are reasonable grounds for believing that an accused is not guilty of the offence the Court is not to find out as to whether he is proved to be innocent or not. For the purpose of Section 37 of the Act an accused may ask the Court to record its satisfaction on the basis of preponderance of probability regarding his innocence. The difficulty, however, in the present case is that the appellant-petitioner has been found to be guilty on the basis of evidence led by the prosecution before the Trial Court. The plea that the bag from which the contraband was recovered was in an open condition appears to be of no held to the appellant for the reason that a large quantity of contraband was found in his bag which admittedly belonged to him. If some small quantity had been recovered the Court could have entertained a suspicion that the said contraband was put into his open bag without his knowledge and could have reasonably entertained a doubt in regard to his complicity. Therefore by preponderance of probability, at this stage the Court is not in a position to record its satisfaction that there are grounds for believing that the appellant is not guilty of offence for which he has been convicted.

8. It is also a fact that the foreigners once released on bail are seldom available for trial or for undergoing the sentences awarded to them. It is specially so in respect of serious offences which entail severe punishment. The apprehension of the respondent, therefore, that in case the appellant is released on bail he may abscond and may not be available appears to be well founded. The only way out appears to be to expedite the disposal of the appeal to the extent possible.

9. In view of the foregoing reasons, the application for suspension of sentence stands dismissed. However, it is ordered that this appeal shall be listed for final disposal in the month of March, 2003.

10. Nothing stated herein shall be taken as an expression of opinion on the merits of the appeal as the observations made herein in regard to the merits of the case are tentative only.