Rajesh Bhalla vs State(Nct Of Delhi)
2010 Latest Caselaw 5857 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           Crl. MB No. 561/2010 in CRL. A. No.450/2010

                                           Reserved on:     26.11.2010
                                           Date of Decision 23.12.2010

IN THE MATTER OF :
RAJESH BHALLA                                          ..... Appellant

                         Through: Mr. Sandeep Sethi, Sr. Advocate
                         with Mr. Yogesh Saxena, Advocate


                   versus

STATE(NCT OF DELHI)                                   ..... Respondent

                         Through: Mr. M.N. Dudeja, APP for the State


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may          Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?         Yes

     3. Whether the judgment should be                 Yes
        reported in the Digest?

HIMA KOHLI, J.

1. This application is filed by the appellant under Section 389

of the Cr.P.C. praying inter alia for suspension of sentence during the

pendency of the accompanying appeal. By the impugned judgment

dated 17.03.2010, the appellant was found guilty and convicted of the

offence under Section 27-A of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as `the Act') by the

learned Special Judge, NDPS. As per the order on sentence dated

20.03.2010, the appellant was awarded a sentence of rigorous

imprisonment for a period of ten years and a fine of `1,00,000/-. In

default of payment of fine, it was directed that the appellant would

undergo simple imprisonment for a period of one year.

2. The brief facts of the case are that on 24.08.2001, based on

secret information received by the Special Cell, Lodhi Colony, a raiding

party was formed and at 10.20 pm at night, two persons were

apprehended from near the Ambassador Hotel. One Naquibullah, was

apprehended by the police, while supplying 1 gm of cocaine to one

Neeraj Wadhera. In the disclosure statement of Naquibullah as

recorded on 30.8.2001, he disclosed that he used to receive financial

assistance from the appellant. Pursuant to this disclosure statement,

recovery was made of two ‗self cheques' amounting to `20,000/- each,

issued by the appellant and allegedly encashed by Naquibullah. The

appellant surrendered on 20.2.2002 and pursuant to the disclosure

statement made by him, recovery was made of two more ‗self cheques'

of `10,000/- and `5,000/-, issued by the appellant and allegedly

encashed by Naquibullah.

3. At the outset, the learned APP for the State challenged the

maintainability of the application for the suspension of sentence in the

light of Section 32-A of the Act, which prohibits suspension of any

sentence awarded under the Act, except under Section 27 of the Act.

He also opposed the grant of suspension of sentence on merits, on the

ground that there is no infirmity in the order of conviction passed by the

Special Judge, NDPS, as there exists sufficient evidence on record to

show that the appellant was involved in financing of the drug trade.

4. In reply, learned Senior Advocate for the appellant asserted

that the present application is maintainable, and placed reliance on the

three-judge bench judgment of the Supreme Court in the case of Dadu

@ Tulsidas v. State of Maharashtra reported as (2000) 8 SCC 437. On

merits, he submitted that apart from the disclosure statement of

Naquibullah, there was no other evidence against the appellant before

the learned Special Judge, NDPS to have convicted him under Section

27-A of the Act. He further submitted that the only evidence relied upon

by the prosecution were the four ―self cheques‖ issued by the appellant,

which were recovered pursuant to the disclosure statements of

Naquibullah and the appellant. It was urged that the disclosure

statement of Naquibullah cannot be treated as a substantive piece of

evidence as it is merely the disclosure of a co-accused. He, further,

argued that the statement of Naquibullah would be admissible only to

the extent to which it states that cheques were issued to him by the

appellant, but not that he was being financed by the appellant in the aid

of his drug trade. In the alternative, it was argued, that even if the

disclosure statements of Naquibullah and the appellant, which led to the

recovery of four cheques, are considered admissible in evidence, the

same cannot lead to the conclusion that the appellant was financing

Naquibullah's drug trade, as the cheques were self-encashed by the

appellant who had stated that he had to make payments to one Ali, a

carpet seller, a fact which is supported by the testimony of PW-15, A.N.

Dhawan, the accountant of the appellant. In support of his submission

that the appellant is entitled to grant of suspension of sentence in the

present case, counsel for the appellant placed reliance on the following

judgments:

(i) Om Parkash Bakshi v. The State 1989 Cri.L.J 1207

(ii) Dadu @ Tulsidas v. State of Maharashtra (2000) 8 SCC 437

(iii) Anter Singh v. State of Rajasthan (2004) 10 SCC 657

(iv) Union of India v. Rattan Mallik (2009) 2 SCC 624

(v) Ashish v. State 2010 [2] JCC 1353

(vi) Mahendra Kumar v. State 2010 [4] JCC 2648

In light of the above submissions, counsel for the appellant submitted

that there are reasonable grounds for allowing suspension of sentence.

5. This Court has heard the counsels for the parties and

carefully considered their respective submissions. Coming first to the

issue of maintainability of the present application, Dadu's case (supra)

has decisively struck down Section 32-A of the Act as being ultra vires

Article 21 of the Constitution to the extent that it completely debars the

appellate court from the power to suspend the sentence awarded to a

convict under the Act. While holding Section 32-A void to the aforesaid

extent, the Supreme Court went on to hold that it would neither entitle

such convicts to ask for suspension of the sentence as a matter of right

in all cases nor would it absolve the courts of their legal obligations to

exercise the power of suspension of sentence within the parameters

prescribed under Section 37 of the Act. In view of the aforesaid decision

in Dadu's case (supra), the question of maintainability of the present

application of the appellant for suspension of sentence has to be

decided in his favour.

6. It now remains to be seen whether the suspension of

sentence sought by the appellant is permissible within the stringent

parameters laid down under Section 37(1)(b) of the Act. Though these

parameters are in reference to grant of bail, they have been held to be

applicable to cases of suspension of sentence under the Act, as well.

Section 37 of the Act, as substituted by Act 2 of 1989 with effect from

29-5-1989, with further amendment by Act 9 of 2001 reads as follows:

―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 27-A 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.‖

7. As stated above, the court has to satisfy itself not only on

the broad principles of law laid down for grant of suspension of

sentence, but also of the parameters provided for under Section 37(1)

(b)(ii) of the Act. The satisfaction that needs to be recorded at this

stage is of ―reasonable grounds‖ and whether such grounds exist to

grant suspension of sentence to the appellant. In the case of Union of

India v. Rattan Mallik reported as (2009) 2 SCC 624 , the Supreme

Court opined on the meaning of ―reasonable grounds‖ and the standard

of scrutiny required under Section 37 of the Act, as follows:-

"Para 13.... The expression ―reasonable grounds‖ has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari (2007)7 SCC 798). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.

Para 14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a

finding of ―not guilty‖. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.‖ (emphasis added)

8. In the present case, the first stage of enquiry is whether

there exist reasonable grounds to believe that the appellant is not

guilty of the offence. A roving enquiry of the evidence relied on by the

trial court is not required at this stage. The appellate court needs only

satisfy itself that prima facie there exist grounds because of which the

appeal, when heard, may result in a decision favourable to the

appellant.

9. Coming to the argument of the counsel for the appellant

that the disclosure statement of Naquibullah cannot be used against the

appellant, it is settled law that the statement of a co-accused is not a

substantive piece of evidence and at best it can only be used against

the appellant as a piece of corroborative evidence. (Refer: Om Parkash

Bakshi v. The State reported as 1989 Cri.L.J 1207). In Ashish v. State

reported as 2010 [2] JCC 1353, a Division Bench of this Court has

held that recoveries made by the co-accused are not incriminating

evidence against the other. Further, in the case of Mahendra Kumar v.

State reported as 2010 [4] JCC 2648, it has been held that it is a

clear mandate of Section 27 of the Evidence Act, 1872 that only that

part of the disclosure statement which leads to a recovery, would be the

part that would be is admissible in court. In this case, the Division

Bench held as below:-

―Para 18. .... The extent of the information admissible under the section would depend on the exact nature of the fact discovered, to which such information is required to relate. "The fact discovered" is not equivalent to the object produced by the accused or recovered by the police. It embraces the place from which the object is produced or recovered and knowledge of the accused as to this. The statement made by the accused, which is not directly or necessarily connected with the fact discovered, is not admissible in evidence. If the accused makes a compound statement, the court needs to divide it into various parts and admit only that part which has led to discovery of a particular fact. The rest of the statement needs to be rejected....‖ (emphasis added)

10. The Supreme Court in the case of Anter Singh v. State of

Rajasthan reported as (2004) 10 SCC 657, has clarified the

expression, ―as relates distinctly to the fact thereby discovered‖ in

Section 27 of the Evidence Act, 1872 to state:

"Para 14. ... It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible.

The rest of the information has to be excluded. The word ―distinctly‖ means ―directly‖, ―indubitably‖, ―strictly‖, ―unmistakably‖. The word has been advisedly used to limit and define the scope of the provable information. The phrase ―distinctly‖ relates ―to the fact thereby discovered‖ and is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. (See Mohd. Inayatullah v. State of Maharashtra (1976)1 SCC 828.)‖ (emphasis added)

Having regard to the abovementioned cases, this court is of the view

that strong reliance cannot be placed on the disclosure statements of

Naquibullah and the appellant, and on the recoveries made pursuant to

them.

11. This court is inclined to agree with the learned counsel for

the appellant that, prima facie, having regard to the fact that the only

piece of evidence on the record, to connect the appellant to the offence,

is the disclosure statements, which in themselves are not substantive

pieces of evidence, there exist reasonable grounds to conclude that the

appellant is entitled to grant of suspension of sentence.

12. Counsel for the appellant states that the appellant fulfils the

second requirement under Section 37 of the Act, which is that he should

not be likely to commit any offence, once he is out on bail or after

suspension of his sentence, inasmuch as when the appellant was

granted bail during the course of the trial, vide order dated 6.10.2005,

he did not misuse the liberty granted to him at that time. This fact has

not been controverted by the prosecution.

13. The nominal roll of the appellant has been placed on record.

As per the said nominal roll, against a quantum of sentence of rigorous

imprisonment for a period of ten years and a fine of `1,00,000/-, in

default thereof, simple imprisonment for one year, the appellant had

undergone a sentence of three years, eleven months and nine days as

on 9.07.2010. As on date, he has remained in custody, for

approximately a period of four years four months. His jail conduct for

the past one year is stated to be satisfactory and there are no other

pending criminal cases against him.

14. In light of the aforesaid facts and circumstances and taking

into consideration the fact that the appellant has served a few months

short of half of his term of sentence and keeping in mind the fact that

he is 57 years of age, stated to be suffering from various liver and lung

ailments, and has a daughter of marriageable age and there is no one

else in his family to take care of her needs, the present application is

allowed. It is directed that the sentence of the appellant shall remain

suspended during the pendency of the appeal, on his furnishing a

personal bond in the sum of `50,000/- with one surety of the like

amount to the satisfaction of the trial court, and subject to his

depositing the fine as imposed on him, if not already paid.

15. The application is disposed off.

16. Needless to state that the aforesaid prima facie view is

expressed only for the purpose of disposing the present application and

is not a conclusive view of the court, which shall be arrived at only after

hearing the appeal on merits.

A copy of the order be forwarded forthwith to the Jail

Superintendent, for information.

                                                      ( HIMA KOHLI )
DECEMBER     23, 2010                                     JUDGE
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