Delhi High Court
Rizwan Ahmad vs Dri on 29 July, 2022
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order pronounced on 29.07.2022
+ CRL.A. 278/2021
RIZWAN AHMAD ..... Appellant
Through: Mr. Pritish Sabharwal, Advocate.
versus
DRI ..... Respondent
Through: Mr. Satish Aggarwala, SPP with Mr.
Gagan Vaswani, Advocate.
CORAM:
HON'BLE MR. JUSTICE TALWANT SINGH
Talwant Singh, J.:
CRL.M.(BAIL) 1188/2021
1. This is an application for suspension of sentence moved by the
appellant/applicant. The appellant has filed the accompanying appeal
assailing the judgement of conviction dated 04.02.2021 and order on sentence
dated 13.04.2021, by which he was ordered to undergo Rigorous
Imprisonment of 10 years with fine of Rs. 1.00 Lac for offence under Section
9A/25A of the NDPS Act.
1.1 Suspension of sentence has been sought on the ground that the
prosecution has miserably failed to prove guilt of appellant/applicant beyond
reasonable doubt; the prosecution has failed to prove and satisfy the basic
ingredients of the offence under Section 9A/25A of the NDPS Act; the
prosecution has failed to establish that the samples were kept intact in the
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custody of the investigating authorities; not even a single independent witness
was examined; there are loopholes in the story of the prosecution and there
was nothing on record to show that the appellant/applicant was present at the
time of examination of consignment; mandatory provisions of NDPS Act
were not complied with; the appellant was convicted only on the testimonies
of officials of investigating authorities; the appellant/applicant has prima facie
good and arguable case, which may result in acquittal of the
appellant/applicant; the appellant/applicant is an innocent man with clean
antecedents; the financial condition of the family of the appellant/applicant is
extremely bad; the judgement of the learned Trial Court is not final as the
appellant/applicant has preferred an appeal against the same; the
appellant/applicant has deep roots in the society, so there is no question of
him being away from the process of law.
2. Notice was issued. Reply has been filed on behalf of the respondent
submitting that there is no cogent and legally acceptable ground for
acceptance of the appeal or for grant of suspension of sentence.
2.1 It is further submitted by respondent that in the year 2012, the bail
application of the present appellant/applicant, during pendency of trial, was
dismissed by this Court as well as by the Hon'ble Supreme Court. However,
he was granted bail by the learned Special Judge on 05.03.2014. There is no
reason for false implication of the present appellant/applicant; official
witnesses are to be believed and non-appearance of public witnesses is
immaterial. The minor deficiencies/contradictions cannot be considered to be
fatal for the prosecution.
3. Nominal roll of the appellant/applicant was called from the Jail
authorities.
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3.1 The nominal roll shows that as on 07.07.2022, the appellant/applicant
has already undergone 4 years, 6 months and 21 days of incarceration, out of
which 1 year, 2 months and 25 days are of post conviction period. As on today,
his total period of incarceration is 4 years, 7 months and 13 days, out of which
the post conviction period undergone by him is 1 year, 3 months and 17 days.
3.2 In the matter of Daler Singh v. State of Punjab 2006 SCC ONLINE
P&H 1591', the following guidelines were laid down for considering
applications for suspension of sentence of different categories of convicts,
based upon the sentence awarded and the period undergone:
"Keeping in view the spirit of Art. 21, the following principles
should be adopted for the release of the prisoners (convicts) on bail
after placing them in different categories as under:
(i) Where the convict is sentenced for more than ten years for
having in his conscious possession commercial quantity of
contraband, he shall be entitled to bail if he has already undergone
a total sentence of six years, which must include atleast fifteen
months after conviction.
(ii) Where the convict is sentenced for ten years for having in
his conscious possession commercial quantity of contraband, he
shall be entitled to bail if he has already undergone a total sentence
of four years, which must include atleast fifteen months after
conviction.
(iii) Where the convict is sentenced for ten years for having in
his conscious possession, merely marginally more than non-
commercial quantity, as classified in the table, he shall be entitled
to bai if he has already undergone a total sentence of three years,
which must include atleast twelve months after conviction.
(iv) The convict who, according to the allegations, is not
arrested at the spot and booked subsequently during the
investigation of the case but his case is not covered by the offences
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punishable under S, 25, 27-A and 29 of the Act, for which in any
case the aforesaid clauses No. (i) to (iii) shall apply as the case
may be, he shall be entitled to bail if he has already undergone a
total sentence of two years, which must include at least twelve
months after conviction."
4. The case of the present appellant/applicant falls in category (ii) as he
has already completed 4 years of sentence out of 10 years Rigorous
Imprisonment awarded to him and he has already remained in custody for
more than 15 months post-conviction period. Although, suspension of
sentence has been opposed on grounds which are touching the merits of the
case and the appellant/applicant has also mentioned the said grounds
regarding merits of the case but the said grounds are to be discussed after
giving opportunity to both the sides to argue in detail at the time of hearing of
the appeal, so no opinion is expressed at this stage.
4.1 As per the nominal roll, the present appellant/applicant is not involved
in any other case, so his sentence is suspended on execution of personal bond
of Rs. 50,000/- with a surety of the like amount, subject to the satisfaction of
the concerned Jail Superintendent, subject to the following conditions:
(i) He shall share his Mobile Number with the SHO of the area in which
he resides within 3 days of his release and he shall keep his mobile location
on at all times.
(ii) He shall not indulge in a criminal act during the pendency of the present
bail.
(iii) He shall appear before this Court as and when his appeal is listed for
hearing.
5. The application is accordingly disposed of.
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CRL.A. 278/2021
6. The appeal will be heard on its own turn.
TALWANT SINGH, J
JULY 29, 2022
pa
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