Edward Khimani Kamau vs Narcotics Control Bureau
2014 Latest Caselaw 6000 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                   Date of Decision: 20.11.2014

+       CRL.A. 1113/2011
        EDWARD KHIMANI KAMAU                                      ..... Appellant
                           Through      Mr.Vikas Gautam, Advocate
                           versus
        NARCOTICS CONTROL BUREAU                               ..... Respondent
                           Through      Mr. Mukesh Malik, Adv. for NCB
        CORAM:
        HON'BLE MS. JUSTICE SUNITA GUPTA
                                    JUDGMENT

: SUNITA GUPTA, J.

Crl. M.B. No. 186/2014 (suspension of sentence )

1. Vide this application the appellant seeks suspension of sentence and release on bail primarily on the ground that the appellant has spent about four (4) years and ten (10) months in judicial custody as on 05.12.2013. Reliance was placed on Daler Singh v State of Punjab, 2007(1) CC Cases (HC) 252 wherein in case of a conviction under NDPS Act, certain guidelines were laid down, one of which was that where the convict is sentenced for ten years for having in his conscious possession the commercial quantity of the contraband, he shall be entitled to bail if he has already completed total sentence of four years which must include at least 15 months after conviction. This parameter was followed in Sachin Arora v DRI [Crl. MB 1659/2011 in Crl. Appeal No.881/2010] and in Bhahron Lal v. State [Crl. Appeal No.820/2009]. It is further submitted that there are

material discrepancies in the prosecution case inasmuch as the seizure memo is dated 05.02.2009. However, the test memo was prepared on 09.02.2009.

2. The application is vehemently opposed by counsel for the respondent

- NCB and it was submitted that after a full-fledged trial, the appellant was convicted for offence under Section 21(C)/23 read with Section 28 of the NDPS Act and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lac and in default of payment of fine, to undergo simple imprisonment for a period of one year. It is a case of recovery of commercial quantity i.e. 770 gms of heroin and Section 37 of NDPS Act puts a complete bar on the suspension of sentence and grant of bail. There is no discrepancy in panchnama as referred to by counsel for the appellant. Moreover, this submission is made for the first time and when the Investigating Officer was examined, his attention was not drawn to the discrepancy, which is being pointed out at this stage and, therefore, the sentence is not liable to be suspended and the application deserves dismissal.

3. Reliance was placed on Union of India v Rattan Mallik @ Habul, (2009) 2 SCC 624; N.R. Mon v M.D. Nasimuddin, 2008(3) JCC (Narcotics) 170; Customs v Ahmadalieva, (2004) 3 SCC 549; Pawan Mehta v The State, 2002(1) JCC 34; UOI v Shiv Shankar Kesari, (2007) 7 SCC 798; NCB v Karma Phuntsok & Ors., (2005) 12 SCC 480; UOI v Ram Samujh & Anr., 1999 (3) CC Cases (SC) 22; Vinod Kumar & Ors. v Shri S.K. Srivastava, Intelligence Officer, DRI, 2006(1) JCC (Narcotics) 1 (DHC); UOI v Gurcharan Singh, 2003(11) SCC 764; and UOI v Abdulla, 2004(13) SCC

504.

4. The judgment of Daler Singh (supra) relied upon by counsel for the appellant was passed by Punjab and Haryana High Court following which in two cases the sentence was suspended by this Court. However, in Rattan Mallik Alias Habul (supra) relied upon by counsel for the respondent, the sentence was suspended by the High Court on the ground that nothing was found from the possession of the accused, he was in jail for the last three years and there was no chance of appeal being heard within a reasonable period. While setting aside the order and remitting the matter back to the High Court for fresh consideration it was observed that these circumstances may be relevant for grant of bail in matters arising out of conviction under the Penal Code, they are not sufficient to satisfy the mandatory requirements as stipulated in Section 37(1)(b) of NDPS Act. The relevant observations made by the Hon'ble Supreme Court are reproduced as under:

"...While dealing with the bail application, High Court appears to have lost sight of the mandatory requirements of Section 37 of the NDPS Act thus the order is clearly unsustainable. The broad principles which should weigh with the Court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of this Court. When a prosecution/conviction is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, these provisions cannot be ignored while dealing with such an application. The respondent has been convicted and sentenced for offences under the NDPS Act and therefore, while dealing with his application for grant of bail, in addition to the broad principles to be applied in prosecution for offences under the Indian Penal Code, 1860 the relevant provision in the said special statute in this regard had to be kept in view.

xxx

It is plain from a bare reading of the non-obstante clause in Section 37 of the NDPS Act and Sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, but also subject to the restrictions placed by clause (b) of Sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz;

(i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". The expression 'reasonable grounds' in Section 37(1)(b)(ii) 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. Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.

...While considering an application for bail with reference to Section 37 of the NDFS 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."

5. In view of the same, mere long incarceration of the appellant in jail is not a sufficient ground to release him on bail.

6. As regards, the discrepancy pointed out by counsel for the appellant regarding the date mentioned in the seizure memo and test memo, there seems to be no discrepancy as the recovery was effected on 05.02.2009 and accordingly seizure memo was prepared on the same date. The test memo also mentioned the date of sample as 05.02.2009 and in that very column date 09.02.2009 is also mentioned as the dispatch of sample. The sample were sent to Chemical Examiner, CRCL Pusa, Rohini, Delhi vide Ex.PW1/DA on 09.02.2009. Moreover, this is a matter which is required to be considered during final stage and on this count the appellant cannot seek suspension of sentence.

7. With these observations, the application is dismissed.

CRL.A. 1113/2011 & Crl. MA 10638/2011, 1981/2012 & 5006/2013 Keeping in view the period of detention of the appellant, efforts will be made to expedite hearing of appeal.

As such, relist this appeal for final disposal on 19.02.2015, alongwith pending applications.

(SUNITA GUPTA) JUDGE NOVEMBER 20, 2014/rd