Gurmeet Lal vs Narcotic Control Bureau
2013 Latest Caselaw 787 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Date of Order: 18th February, 2013

+    Crl.M.(B).43/2013 in CRL.A.909/2009

     GURMEET LAL                                              ..... Appellant
                            Through:        Mr.Vikas Jain, Advocate


                                            versus

     NARCOTIC CONTROL BUREAU               ..... Respondent
                 Through: Mr.B.S.Arora, Advocate

     CORAM:
     HON'BLE MR. JUSTICE G.P. MITTAL

                               O R D E R

Crl.M(B).43/2013 (Suspension of Sentence)

1. An interesting question of law falls for determination in the instant Application, viz., whether a person convicted under Sections 21/29 of the Narcotics and Psychotropic Substances Act, 1988(NDPS Act) and sentenced to a long period of imprisonment is entitled to suspension of sentence simply on the ground of long incarceration or the twin test as laid down under Section 37 of the NDPS Act is required to be satisfied?

2. The Applicant stands convicted for an offence under Section 21(c) of the NDPS Act. By an order on sentence dated 15.09.2009, the Applicant was sentenced to undergo RI for a period of 10 years and to pay a fine of `2,00,000/-. The Applicant avers that he has already undergone the sentence of about 08 years and 02 months from the date of his arrest which includes

three years since the date of his conviction. It is stated that the Applicant during the period of interim suspension of sentence did not misuse the liberty granted to him by the Court. He is, therefore, entitled to suspension of sentence.

3. The Application is opposed by the learned counsel for the Respondent on the ground that long incarceration is not a sufficient ground to suspend his sentence of imprisonment or the sentence of fine. The learned counsel for the Respondent relies on a three Judge Bench decision of the Supreme Court in Dadu v. State of Maharashtra, (2000) 8 SCC 437, another three Judge Bench decision of the Supreme Court in Ratan Kumar Vishwas v. State of Uttar Pradesh, (2009) 1 SCC 482, a Division Bench decision of Supreme Court in Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624 and a judgment passed by a learned Single Judge of this Court in Triloki v. NCB (in Crl.A.794/2010) decided on 13.09.2012.

4. On the other hand, the learned counsel for the Applicant referring to the report of the Supreme Court rendered by a three Judge Bench in Man Singh v. Union of India, (2006) 1 SCC (Cri) 279 submits that long incarceration after conviction is sufficient to grant suspension of sentence. The learned counsel for the Applicant relies on Vishal Sharma v. Directorate of Revenue Intelligence, (Crl.M.(B).193/2011 in Crl.A.148/2010) decided on 06.02.2012, Sachin Arora v. Directorate of Revenue Intelligence, (Crl.M.(B).1659/2011 in Crl.A.881/2010) decided on 12.01.2012, Ubesh Ansari @ Chandu v. State, (Crl.M.(B).842/2011 in Crl.A.449/2009) decided on 15.07.2011, Iqbal v. State, (Crl.M.(B).1409/2011 in Crl.A.466/2009) decided on 12.08.2011 and Sunil Kumar v. The State of NCT of Delhi, (Crl.M.(B).1102/2010 in Crl.A.931/2010) decided on 13.09.2012 where the

suspension of sentence was granted in a case of commercial quantity on the ground of long incarceration.

5. The Constitutional validity of Section 32A in the NDPS Act came up for consideration before a three Judge Bench of the Supreme Court in Dadu. The Supreme Court went into the objects and reasons for insertion of Section 32A in the NDPS Act, referred to the United Nations Conventions Against Illicit Traffic in Narcotics and Psychotropic Substances, 1988 and held that Section 32A of the NDPS Act so far as it ousted the jurisdiction of the Court to suspend the sentence awarded to a convict under the Act as unconstitutional, but at the same time laid down that grant of bail during trial or suspension of sentence during Appeal would only be on satisfying the condition as laid down under Section 37 of the NDPS Act. In para 29 of the judgment, the Supreme Court concluded as under:

"29. Under the circumstances the writ petitions are disposed of by holding that:

(1) Section 32-A does not in any way affect the powers of the authorities to grant parole.

(2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act. (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act, as dealt with in this judgment."

6. In Ratan Kumar Vishwas, a three Judge Bench of the Supreme Court reiterated the principles for suspension of sentence as held in Dadu. Para 18 of the report lays down as under:

"To deal with the menace of dangerous drugs flooding the market, Parliament has provided that a person accused of offence under the Act should not be released on bail during

trial unless the mandatory conditions provided under Section 37 that there are reasonable grounds for holding that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail are satisfied. So far as the first condition is concerned, apparently the accused has been found guilty and has been convicted."

7. Similarly, in Rattan Mallik, this Court held that without recording the satisfaction as required under Section 37, the suspension of sentence cannot be granted and the matter was remitted back to the High Court for rehearing the Application for suspension of sentence only after the Respondent surrendered to custody. Paras 16 and 17 of the report are extracted as under:

"16. Merely because, according to the learned Judge, nothing was found from the possession of the respondent, it could not be said at this stage that the respondent was not guilty of the offences for which he had been charged and convicted. We find no substance in the argument of learned counsel for the respondent that the observation of the learned Judge to the effect that "nothing has been found from his possession" by itself shows application of mind by the learned Judge tantamounting to "satisfaction" within the meaning of the said provision. It seems that the provisions of the NDPS Act and more particularly Section 37 were not brought to the notice of the learned Judge.

17. Thus, in our opinion, the impugned order having been passed ignoring the mandatory requirements of Section 37 of the NDPS Act, it cannot be sustained. Accordingly, the appeal is allowed and the matter is remitted back to the High Court for fresh consideration of the application filed by the respondent for suspension of sentence and for granting of bail, keeping in view the parameters of Section 37 of the NDPS Act, enumerated above. We further direct that the bail application shall be taken up for consideration only after the respondent surrenders to custody. The respondent is directed to surrender to custody

within two weeks of the date of this order, failing which the High Court will take appropriate steps for his arrest."

8. It is true that a three Judge Bench decision of the Supreme Court in Man Singh had granted suspension of sentence in a case under the NDPS Act where the convict had served more than seven years of imprisonment out of the total sentence of ten years. But, at the same time, it is to be noted that the provision of Section 37 of the NDPS Act did not come for consideration before the Supreme Court. The three Judge Bench in Dadu and in Ratan Kumar Vishwas specifically dealt with the interpretation and the satisfaction to be recorded while granting suspension of sentence during the pendency of the Appeal. Thus, the report in Man Singh shall not be of any help to the Applicant.

9. I have gone through the judgments of the Co-ordinate Benches of this Court whereby suspension of sentence was granted without satisfaction under Section 37 of the NDPS Act. The same would be of no avail in view of the judgments of the Supreme Court in Dadu, Ratan Kumar Vishwas and Rattan Mallik.

10. Nothing has been placed on record by the Applicant to satisfy this Court even prima facie that there are reasonable grounds for believing that he is not guilty of the offence under Section 21(c) of the NDPS Act for which he stands convicted by the learned Special Judge, or that he is not likely to commit any offence while on bail. On the other hand, it is pointed out by the learned counsel for the Respondent that the instant case was registered against the Applicant while he was on bail in a case under the NDPS Act registered in Jammu. The learned counsel for the Applicant urges that the Applicant has since been acquitted in the said case. Be that as it may, the

Applicant has failed to satisfy the twin test as laid down under Section 37(b)(ii) of the NDPS Act.

11. Thus, the Applicant is not entitled to the suspension of sentence.

12. Consequently, the Application is dismissed.

CRL.A.909/2009

13. Since the Applicant is in custody for a long time, the hearing of the Appeal is expedited.

14. Both the parties are directed to file brief synopsis along with relevant case laws running into not more than three pages within two weeks.

15. Renotify on 10.04.2013 in the category of „After Notice Misc. Matters‟.

G.P. MITTAL, (JUDGE) FEBRUARY 18, 2013 pst