Jasbir Singh vs Govt. Of Nct Of Delhi
2012 Latest Caselaw 3794 Del

*             HIGH COURT OF DELHI AT NEW DELHI

+                    CRL.A. No. 349/2011

                                         Date of Decision : 02.07.2012

JASBIR SINGH                                     ..... Appellant
                              Through: Mr.Samrat Nigam, Adv.

                      versus

GOVT. OF NCT OF DELHI          ..... Respondent
                 Through: Mr.Satish Aggarwala, Adv.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

Crl.M.A.No.4801/2012 Crl.M.A.No.4802/2012

1. This order shall dispose of the applications bearing

Crl.M.A.nos.4801/12 and 4802/12.

2. So far as the first application bearing Crl.M.A.

no.4801/12 is concerned, it is for recalling of the order

dated 12.4.12 and the second application bearing

Crl.M.A. no.4802/12 is for keeping the order dated

12.4.12 in abeyance till the time the first application is

decided.

3. Briefly stated, the facts of the case are that the appellant

was convicted for an offence u/S 20 (b) (ii) (c) of NDPS

Act and was sentenced to RI of ten years apart from fine

of Rs.1,00,000/- and in default of payment of fine, the

appellant was further directed to undergo six months RI.

The appellant was given the benefit of Section 428

Cr.P.C. The judgment of conviction and the order of

sentence was passed on 15.9.2010 and 17.9.2010 by the

learned Special Judge, NDPS, New Delhi.

4. The appellant had filed an application for suspension of

sentence along with the appeal which is stated by the

respondent, to have been dismissed. The prayer of the

appellant for grant of the suspension of sentence and

release him on interim bail was also dismissed.

5. The third application filed by the appellant bearing

Crl.M.B.no.2235/2011 for suspension of sentence and

enlargement on bail was considered by this Court

inasmuch as the appellant had contended in the said

application that he has served more than six years of the

total sentence and out of six years, 15 months were

undergone by him, after the date of conviction and

sentence passed by the learned Special Judge.

Accordingly, it was contended by Mr.Nigam, the learned

counsel that in terms of the case titled Daler Singh Vs.

State of Punjab 2007(1) C.C. Cases (HC) 252, the

appellant has satisfied the twin conditions specified

therein of having undergone more than half of the total

sentence out of which 15 months were undergone by

him, after the date of conviction and sentence and,

therefore, he be extended the benefit of suspension of

sentence and enlargement on bail, as there is no

immediate prospect of the appeal being taken up for

regular hearing.

6. The arguments on the applications were heard on

26.3.2012 and the matter was ultimately adjourned to

12.4.2012. On the said date, the arguments were heard

and the Court after considering the entire matter in the

light of Daler Singh's case (supra) had directed the

release of the appellant on bail after suspending his

sentence for the remaining period on payment of a fine

of Rs.1 lac, so that his appeal could be heard.

7. It is this order which has been assailed by the

respondent by way of present application wherein it has

prayed that the said order be recalled because it was not

pointed out to the Court that in Daler Singh's case, it has

been specifically observed that the benefit of suspension

of sentence and enlargement on bail may not be

extended in cases where the appellant is a foreign

national, a proclaimed offender or has been found to be

in possession of heavy quantity of narcotics. It was

contended by Mr.Aggarwala, that in the instant case,

since he was not present, the learned counsel for the

appellant did not point out to this Court that a recovery

of 148 kgs. of Charas was effected from the appellant

and, therefore, in view of the facts of the case, he was

not entitled to the benefit of the suspension of sentence

and enlargement on bail by the Court.

8. The learned counsel for the respondent in support of his

contention has not only referred to the relevant

paragraph 30 of the judgment in Daler Singh's case

(supra) but has also referred to another judgment of the

Apex Court in case titled State of Orissa & Anr. Vs.

Saroj Kumar Sahoo 2006(1) JCC 67 (SC) and has

contended that the powers u/S 482 Cr.P.C. are the

inherent powers of the High Court to do substantial

justice and to secure the ends of justice and since in the

present case, justice has not been done to the

respondent inasmuch as, it did not get an opportunity of

pointing out to the Court that this was a case where the

benefit of suspension of sentence ought not to have been

extended in terms of Daler Singh's case (supra) as it was

a case of heavy recovery. Therefore, the order dated

12.4.12 be recalled.

9. The second application has been filed to the effect that

during the pendency of the aforesaid application, the

operation of the order in question i.e. 12.4.12 be kept in

abeyance.

10. Mr.Nigam, the learned counsel for the appellant has filed

the reply to the application and contested the plea raised

by the learned counsel for the respondent. He has relied

upon number of judgments of the Apex Court and our

own High Court to contend that the Supreme Court in

case titled [email protected] Tulsi Dass Vs. State of

Maharashtra 2001(1) C.C. Cases 91 (SC) has

categorically held that Section 32(A) of the NDPS Act

1985, so far as it takes away the power of the Court to

suspend the sentence and enlarge the appellant on bail is

violative of Article 21 of the Constitution. He has also

drawn the attention of the Court to a judgment of the

Apex Court in case titled Man Singh Vs. Union of

India, 2006(2) RCR (Crl.) 73(SC) as well as to Daler

Singh's case (supra) to contend that in both these cases,

both the Apex Court as well as the Punjab and Haryana

High Court had extended the benefit of suspension of

sentence to the accused persons, notwithstanding the

fact that the recovery of a huge contraband was

effected from the accused persons in both the cases.

11. It is further contended by Mr.Nigam that the Delhi High

Court in number of orders has extended the benefit of

suspension of sentence and enlargement of the

appellants on bail despite the fact that heavy recovery

has been effected. Copies of these orders which have

been passed by the High Court are attached along with

the synopsis. These cases are, Crl.A.no.1370/10, Crl.A.

no.466/09, Crl.A.no.820/09 and in Crl.A. no.881/2010.

12. I have carefully considered the submissions made by the

learned counsel for the parties and gone through the said

judgments.

13. There is no denial of the fact that the legal position has

been enunciated by the Apex Court in Man Singh's case.

Consequently, the Supreme Court in Dadu's case clearly

laid down that despite the fact that Section 32(A) of the

NDPS Act prohibits the extension of the benefit of

suspension of sentence to a convict in a case of

conviction under NDPS Act, except where a conviction

has taken place under Section 27 of the Act, the benefit

of suspension of sentence and enlargement on bail

cannot be given, yet the Apex Court has held that the

grant of bail and the suspension of sentence is an

inherent power of the Court and a complete embargo on

the said power violates the power of judicial review of the

Court and Article 21 of the Constitution of India and,

therefore, on case to case basis, it is left to the wisdom

of the Court to suspend the sentence and enlarge the

appellant on bail.

14. It is on this reasoning that the Apex Court in Man Singh's

case (supra) has enlarged the appellant on bail despite

the fact that he was sentenced to almost ten years of RI,

out of which he has undergone nearly seven years of RI

and it was observed that there is no immediate prospect

of the appeal being heard in near future.

15. Punjab and Haryana High Court in Daler Singh's case had

an occasion to revisit the entire law in this regard and

had formulated the broad parameters on the basis of

which the Court must consider the application for

suspension of sentence and enlargement on bail. No

doubt, in the said judgment in para 30, it has been

observed that the benefit of suspension of sentence and

enlargement on bail should not be extended to a person

who is an absconder, a proclaimed offender and a foreign

national or who has been found to be prima facie in

possession of a huge quantity of contraband.

Nevertheless, in the instant case, the only ground which

is made as a basis for recall of the order dated 12.4.12,

is a heavy recovery of the contraband, which is stated to

be to the tune of 148 kgs. of charas. No doubt, the

recovery of 148 kgs. of charas from the appellant, is a

heavy recovery, but this fact was not brought to the

notice of the Court as the learned counsel for the

respondent was not present on the day when arguments

were concluded. It is possible that had this fact been

pointed out the question of grant of suspension of

sentence and enlargement on bail may not have been

decided in favour of the appellant.

16. But, after having decided the question of suspension of

sentence and enlargement of the appellant on bail on the

assumption that he was convicted for a serious offence

and had undergone nearly six years of sentence, out of

which admittedly 15 months were undergone after the

date of conviction and sentence, this Court in its wisdom

considered to exercise the discretion for grant of the

benefit of suspension of sentence and enlargement on

bail, at that point of time in favour of the appellant, as

there was no immediate prospect of the appeal being

taken up in near future.

17. Now that this fact has been pointed out, I feel that it will

be totally inappropriate and inequitable to recall the

order of bail of the appellant to confine him to custody

again. The equities could be balanced by simply listing

the matter for final disposal at an early date, so that the

appeal itself be heard on merits and decided.

18. I am cognizant of the fact that various learned Single

Judges of this Court have put reliance on Daler Singh's

case (supra) and granted, the benefit of suspension of

sentence and enlargement on bail to the appellants.

19. For the reasons mentioned above, I feel that the

application of the respondent for recalling of the order

dated 12.4.2012 only on the ground that a huge quantity

of psychotropic substance was effected from the accused,

deserve to be disallowed. The interest of the respondent

can be suitably protected by fixing up an early date for

final disposal of the matter and also by prohibiting the

accused from leaving Delhi.

20. Since the Court is not inclined to recall the order of

suspension of sentence and enlargement on bail, there is

no question of deferring the operation of the said order.

Further, the appellant, as I have been informed, at the

time of hearing of the matter, has not been able to

furnish the fine amount which was a pre condition for

enlargement on bail.

21. For the abovementioned reasons, I feel that keeping in

view the totality of circumstances, the applications of the

respondent deserve to be disallowed, however, in order

to balance the equities, it would be just and proper to list

the main case for final disposal on 03.9.2012 in the

category of 'After Notice Miscellaneous Matters'.

22. Expression of any opinion hereinbefore may not be

treated as an expression on the merits of the case.

V.K. SHALI, J JULY 02, 2012 RN