Kerala High Court
Eldho Abraham vs State Of Kerala on 13 January, 2025
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
Monday, the 13th day of January 2025 / 23rd pousha, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.1698 OF 2024
SC 18/2021 OF ADDITIONAL SESSIONS COURT - I, THIRUVANANTHAPURAM
APPLICANT/APPELLANT:
ELDHO ABRAHAM, AGED 32 YEARS,
S/O. ABRAHAM, NEERANTHANAM HOUSE,
ARAKKAPADDY, KUNNATHUNADU TALUK,
PERUMANY VILLAGE, ERNAKULAM DISTRICT,
KERALA, PIN - 683562.
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to allow this Crl.M.A. and suspend the further
execution of the substantive sentences of imprisonment imposed against the
Applicant/Appellant/Accused No.1 in S.C.18/2021 by the judgment of
conviction and sentence dated 27.06.2024 passed by the Additional Disrict
and Sessions Judge - I, Thiruvananthapuram, till the disposal of the above
appeal in the interest of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S. BALAMURALI K.P., MANU TOM, MOHAMMED
ASHIQ R.S., RENIL IQUBAL K., HARIPRIYA M., AMAL C. PETER, Advocates for
the applicant and of the PUBLIC PROSECUTOR for the respondent, the court
passed the following:
P.T.O.
K.BABU, J.
---------------------------
Crl.M.A.No.1 of 2024
in
Crl.A.No.1698 of 2024
----------------------------
Dated 13th January, 2025
ORDER
This is an application filed under Section 430 of the
Bharatiya Nagarik Suraksha Sanhita, 2023. The petitioner/appellant is
accused No.1 in S.C.No.18 of 2021 on the file of the Additional Sessions
Court-I, Thiruvananthapuram. He has been convicted for the offence
punishable under Section 8(c) r/w Sections 20(b)(ii)(C) and 29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced
to undergo rigorous imprisonment for 12 years and pay a fine of
Rs.1,00,000/-, as per judgment dated 27.6.2024. The petitioner has
been in confinement since 6.7.2020.
2. The prosecution case is that on 6.7.2020 at 10.00 a.m.
the petitioner and the other accused, in furtherance of a conspiracy,
transported 1.005 Kg. of hashish oil and 102 Kg. of ganja, classified as
commercial quantities, for sale in violation of the Narcotic Drugs and
Psychotropic Substances Act. They were apprehended with the
contraband in a Lorry bearing registration No.KL-17-S-3904 near
Crl.M.A.No.1 of 2024 in
Ayirooppara Farmers' Service Co-operative Bank Head Office at
Pothencode in Thiruvananthapuram Taluk.
3. I have heard the learned counsel for the
petitioner/appellant and the learned Public Prosecutor.
4. The learned counsel for the petitioner/appellant
submitted that the prosecution failed to establish the ingredients of the
offence alleged. The learned counsel also submitted that as the
petitioner is a first time offender who has never been convicted for any
offence in the past he is entitled to the benefit contained in the first
proviso to Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(BNSS).
5. The learned Public Prosecutor submitted that in view of
the law declared by the Supreme Court in Dadu alias Tulsidas v.
State of Maharashtra [(2000) 8 SCC 437) the sentence awarded
under the NDPS Act can be suspended by the Appellate Court only and
strictly subject to the conditions spelt out in Section 37 of the Act.
6. The prosecution examined PWs 1 to 10 and proved
Exts.P1 to P34 and MO1 to MO3 series. On the side of the defence DWs
1 to 7 were examined.
Crl.M.A.No.1 of 2024 in
7. The prosecution has established conscious possession of
1.005 Kg. of hashish oil and 102 Kg. of ganja by the petitioner and the
other accused. The prosecution has complied with the statutory
formalities under Sections 50 and 52A of the NDPS Act.
8. The learned counsel for the petitioner submitted that the
petitioner has undergone detention for the period extending up to one-
third of the maximum period of sentence awarded.
9. The learned Public Prosecutor raised the following
contentions challenging the plea of the petitioner to get suspension of
sentence with the aid of first proviso to Section 479 of BNSS.
a) The petitioner has not undergone detention for a period extending up
to one-third of the maximum period of imprisonment specified for the
offence under which he has been convicted.
b) The first proviso is applicable to under-trial prisoners only and not to
convicted prisoners.
10. Admittedly, the petitioner has undergone detention for a
period of four years. He has been found guilty under Section 20(b)(ii)
(C) of the NDPS Act.
11. Section 479 of BNSS reads thus:-
Crl.M.A.No.1 of 2024 in
"479. Maximum period for which undertrial prisoner can be
detained
(1) Where a person has, during the period of investigation,
inquiry or trial under this Sanhita of an offence under any law (not
being an offence for which the punishment of death or life
imprisonment has been specified as one of the punishments under
that law) undergone detention for a period extending up to one-half
of the maximum period of imprisonment specified for that offence
under that law, he shall be released by the Court on bail:
PROVIDED that where such person is a first-time offender
(who has never been convicted of any offence in the past) he shall
be released on bond by the Court, if he has undergone detention for
the period extending up to one-third of the maximum period of
imprisonment specified for such offence under that law:
PROVIDED FURTHER that the Court may, after hearing the
Public Prosecutor and for reasons to be recorded by it in writing,
order the continued detention of such person for a period longer
than one-half of the said period or release him on bail bond instead
of his bond:
PROVIDED ALSO that no such person shall in any case be
detained during the period of investigation, inquiry or trial for more
than the maximum period of imprisonment provided for the said
offence under that law.
Explanation.-In computing the period of detention under this
section for granting bail, the period of detention passed due to delay
in proceeding caused by the accused shall be excluded.
(2) Notwithstanding anything in sub-section (1), and subject
to the third proviso thereof, where an investigation, inquiry or trial
in more than one offence or in multiple cases are pending against a
person, he shall not be released on bail by the Court.
(3) The Superintendent of jail, where the accused person is
detained, on completion of one-half or one-third of the period
mentioned in sub-section (1), as the case may be, shall forthwith
make an application in writing to the Court to proceed under sub-
section (1) for the release of such person on bail."
Crl.M.A.No.1 of 2024 in
As per first proviso to Section 479, where a person has, during the
period of investigation, inquiry or trial under the Sanhita of an offence
under any law and undergone detention for a period extending up to
one-third of the maximum period of imprisonment specified for such
offence he shall be released on bail.
12. The petitioner has been convicted under 20(b) of the
NDPS Act. Section 20(b) of the NDPS Act reads thus:
"20. Punishment for contravention in relation to cannabis
plant and cannabis
Whoever, in contravention of any provisions of this Act
or any rule or order made or condition of licence granted
thereunder,--
(a) xx xxx xxx
(b) produces, manufactures, possesses, sells, purchases,
transports, imports inter-State, exports inter-State or
uses cannabis,
shall be punishable--
(i) where such contravention relates to clause (a) with
rigorous imprisonment for a term which may extend to
ten years and shall also be liable to fine which may
extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),--
(A) and involves small quantity, with rigorous
imprisonment for a term which may extend to one year,
or with fine, which may extend to ten thousand rupees,
or with both;
(B) and involves quantity lesser than commercial
quantity but greater than small quantity, with rigorous
imprisonment for a term which may extend to ten years
Crl.M.A.No.1 of 2024 in
and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous
imprisonment for a term which shall not be less than ten
years but which may extend to twenty years and shall
also be liable to fine which shall not be less than one
lakh rupees but which may extend to two lakh rupees:
PROVIDED that the court may, for reasons to be recorded in
the judgment, impose a fine exceeding two lakh rupees."
The petitioner was found guilty under Section 20(b) wherein the
maximum sentence specified is 20 years and the minimum sentence
specified is 10 years. The petitioner has been sentenced to undergo
imprisonment for 12 years. One third of the maximum period of
imprisonment specified for the offence is 6 years and 8 months. The
petitioner has undergone detention for only four years. Therefore, he is
not entitled to the benefit of the first proviso to Section 479 of BNSS.
13. The second contention of the learned Public Prosecutor
cannot be sustained in view of the law declared by the Supreme Court
in Satender Kumar Antil v. Central Bureau of Investigation and
Anr. [(2022) 10 SCC 51]. The submission of the learned Public
Prosecutor is that Section 479 of the BNSS, which is pari materia with
Section 366A, the corresponding provision of the Code, is applicable
only in the case of prisoners undergoing trial and not convicted
Crl.M.A.No.1 of 2024 in
prisoners. In the context of Section 436A of Cr.P.C. the Supreme Court
in Satender Kumar Antil held thus:-
"63. Section 436A of the Code has been inserted by Act
25 of 2005. This provision has got a laudable object behind it,
particularly from the point of view of granting bail. This
provision draws the maximum period for which an undertrial
prisoner can be detained. This period has to be reckoned with
the custody of the accused during the investigation, inquiry
and trial. We have already explained that the word 'trial' will
have to be given an expanded meaning particularly when an
appeal or admission is pending. Thus, in a case where an
appeal is pending for a longer time, to bring it Under Section
436A, the period in incarceration in all forms will have to be
reckoned, and so also for the revision."
The Supreme Court observed that as `trial' will have to be given an
expanded meaning so as to include appeal and revision. Therefore,
where an appeal is pending, the period in incarceration in all forms will
have to be reckoned to invoke Section 479 of the BNSS.
14. Yet another rider in granting suspension of sentence is
the bar contained in Section 37 of the NDPS Act. Section 37 reads
thus:-
"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 27A and also
Crl.M.A.No.1 of 2024 in
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."
As per Section 37, an accused has to satisfy twin conditions for getting
bail where the Public Prosecutor opposes his application. The conditions
are 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.
15. In Dadu alias Tulsidas (supra), the Apex Court, while
holding that it is unconstitutional to the extent Section 32A of the NDPS
Act takes away the right of the Court to suspend the sentence of a
convict under the Act, made it clear that the 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. Admittedly,
the bar under Section 37 of the Act is applicable to the facts of the
Crl.M.A.No.1 of 2024 in
case. The petitioner failed to place materials to get over the twin
conditions contained in Section 37 of the Act.
16. In the present case, after a full fledged trial the
petitioner has been convicted by the court below. The
petitioner/appellant failed to bring forth anything which is very
apparent or gross on the face of the record, on the basis of which, this
Court can arrive at a prima facie satisfaction that the conviction may
not be sustainable.
17. It is trite that while considering an application under
Section 389 Cr.PC seeking suspension of sentence the Appellate Court is
not expected to re-appreciate the evidence and try to pick up few
lacunas and loopholes here and there in the case of the prosecution.
18. On the scope of Section 389 Cr.PC, in Preet Pal Singh
v. State of U.P [(2020) 8 SCC 645], the Apex Court in paragraphs 35
and 38 of the judgment observed thus:
"35. There is a difference between grant of bail under
Section 439 CrPC in case of pre-trial arrest and suspension of
sentence under Section 389 CrPC and grant of bail, post
conviction. In the earlier case, there may be presumption of
innocence, which is a fundamental postulate of criminal
jurisprudence, and the courts may be liberal, depending on the
facts and circumstances of the case, on the principle that bail is
the rule and jail is an exception, as held by this Court in
Dataram Singh v. State of U.P. (2018) 3 SCC 22 : (2018) 1 SCC
(Cri) 675] However, in case of post conviction bail, by
suspension of operation of the sentence, there is a finding of
Crl.M.A.No.1 of 2024 in
guilt and the question of presumption of innocence does not
arise. Nor is the principle of bail being the rule and jail an
exception attracted, once there is conviction upon trial. Rather,
the court considering an application for suspension of sentence
and grant of bail, is to consider the prima facie merits of the
appeal, coupled with other factors. There should be strong
compelling reasons for grant of bail, notwithstanding an order
of conviction, by suspension of sentence, and this strong and
compelling reason must be recorded in the order granting bail,
as mandated in Section 389(1) CrPC.
36. xxx xxx
37. xxx xxx
38. In considering an application for suspension of
sentence, the appellate court is only to examine if there is such
patent infirmity in the order of conviction that renders the order
of conviction prima facie erroneous. Where there is evidence
that has been considered by the trial court, it is not open to a
court considering application under Section 389 to reassess
and/or re-analyse the same evidence and take a different view,
to suspend the execution of the sentence and release the
convict on bail."
19. In Omprakash Sahni v. Jai Shankar Chaudhary
[(2023) 6 SCC 123] the Apex Court reiterating the principles declared
in Vasant Tukaram Pawar v. State of Maharashtra [(2005) 5 SCC
281], held thus:
"33. Bearing in mind the aforesaid principles of law, the
endeavour on the part of the Court, therefore, should be to see
as to whether the case presented by the prosecution and
accepted by the Trial Court can be said to be a case in which,
ultimately the convict stands for fair chances of acquittal. If the
answer to the above said question is to be in the affirmative, as
a necessary corollary, we shall have to say that, if ultimately
the convict appears to be entitled to have an acquittal at the
hands of this Court, he should not be kept behind the bars for a
pretty long time till the conclusion of the appeal, which usually
take very long for decision and disposal. However, while
undertaking the exercise to ascertain whether the convict has
fair chances of acquittal, what is to be looked into is something
Crl.M.A.No.1 of 2024 in
palpable. To put it in other words, something which is very
apparent or gross on the face of the record, on the basis of
which, the Court can arrive at a prima facie satisfaction that the
conviction may not be sustainable. The Appellate Court should
not re-appreciate the evidence at the stage of Section 389 of
the Cr.PC and try to pick up few lacunas or loopholes here or
there in the case of the prosecution. Such would not be a
correct approach."
The resultant conclusion is that the petitioner is not entitled
to suspension of sentence for the time being.
Sd/-
K.BABU
Judge
TKS
13-01-2025 /True Copy/ Assistant Registrar
