Manipur High Court

Mr. Lalthang Lhouvum Aged About 54 ... vs The State Of Manipur on 9 August, 2021

SHAMURAILATP
AM SUSHIL
SHARMA
Digitally signed by                            IN THE HIGH COURT OF MANIPUR
SHAMURAILATPAM SUSHIL
SHARMA
                                                         AT IMPHAL
Date: 2021.08.11 13:25:32                         MC(Crl.Appeal) No.32 OF 2020
+05'30'                                            Ref: Criminal Appeal No.11 of 2020

                                   Mr. Lalthang Lhouvum aged about 54 years, s/o(L)
                                   Thangkholun Lhouvum of Motbung Bazar, P.O. & P.S. G.
                                   Saparmaina,       District-Kangpokpi     (Earlier    Senapati),
                                   Manipur-795107..

                                                                                    ....... Applicant
                                                              - Versus -
                                   The State of Manipur.
                                                                                  .... Respondent

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Applicant : Mr.Serto T. Kom, Advt.

                                   For the Respondent           :      Mr.Y. Ashang, PP.


                                   Date of hearing              :      09.04.2021

                                   Date of Judgment & Order     :      09.08.2021


                                                       JUDGMENT &ORDER
                                                            (CAV)

             [1]                   This petition has been filed by the petitioner under Section

             389(1) Cr.P.C                 praying to suspend       impugned     judgment dated




             Mc(cril.appeal) no. 32 of 2020.                                                 Page 1

26.06.2020 and sentence dated 30.06.2020 imposed on the petitioner

in Sessions Trial Case No. 113/2015/16 of 2016 on the file of the

learned Special Judge, NDPS, Lamphelpat, Manipur and to release

him on bail pending criminal appeal.

[2] By the judgment dated 26.06.2020 in Sessions Trial Case

No. 113/2015/16 of 2016, the learned Special Judge, convicted the

petitioner for the offence under Section 18(b) of the NDPS Act, 1985.

After giving conviction judgement, the learned Special Judge, directed

to list the matter on 29.06.2020 for sentence hearing and the petitioner

was sent to jail. On 30.06.2020, the petitioner was produced before the

learned Special Judge, and the learned counsel for the parties were

heard, particularly, the petitioner and his counsel, qua sentence to be

awarded to the petitioner.

[3] Upon consideration of the rival submissions and upon

perusal of the relevant Section under which the petitioner was

convicted, the learned special Judge, sentence the petitioner to

undergo 15 years rigorous imprisonment and to pay fine of Rs.1 lakh

within a period of six months from the date of passing of the sentence

order, in default, to undergo another period of six months

Mc(cril.appeal) no. 32 of 2020. Page 2 imprisonment. The Learned Special Judge has also ordered that the

period of detention undergone prior to the conviction by the petitioner

shall be set off against the sentence of imprisonment within the ambit

of Section 428 of Cr.P.C.

[4] Aggrieved by the conviction and sentence imposed on the

petitioner, the petitioner has filed Criminal Appeal No.11 of 2020 before

this Court. Along with the appeal, the petitioner has filed petition

seeking to suspend the sentence stating that he is the sole earning

member of his family and his wife, who is aged around 54 years was

suffering from a chronic kidney disease and undergoing a regular

hemodialysis therapy in the form of biearbonate dialysate at Shija

Hospitals and Research Institute since December, 2019 for 8-10 times

per month for about four hours at a time. It is stated that the ailment

required much attention and care from near and dear ones.

[5] The learned counsel for the petitioner submitted that there

are lot of infirmities in the impugned judgement and the petitioner has

got good case on merits in succeeding the appeal. He would submit

that the trial Court erred in deciding that the petitioner failed to

discharge his burden regarding conscious possessions of opium by

Mc(cril.appeal) no. 32 of 2020. Page 3 adducing defence evidence to counter the version of the prosecution,

because of the reason that when there is no issue of possession of the

contraband by the petitioner and as such there is no duty on the part of

the accused to discharge himself from any burden regarding conscious

possession and in fact the trial Court has also recorded in the finding

that the prosecution witnesses had stated that opium was not seized

from the petitioner.

[6] The learned counsel further submitted that the prosecution

failed to comply with the provisions of Sections 41 and 42 of the NDPS

Act and in fact during trial, the prosecution failed to produce the

polythene bag of light blue and white colour marked as WIN, which is

allegedly used to carry the contraband suspected opium and which is

also included in the seizure list and that there is no convincing

explanation forthcoming from the prosecution. However, all these facts

have been omitted to consider by the trial Court and erred in convicting

the petitioner.

[7] The learned counsel further submitted that the petitioner

was in custody during trial and in fact, while imposing sentence, he was

brought from the jail.

Mc(cril.appeal) no. 32 of 2020. Page 4 [8] The learned counsel for the petitioner then submitted that

the criminal appeal would not be taken up for hearing in the near future

and therefore, the petitioner is entitled to suspension of sentence

pending appeal and that the petitioner undertakes to abide by the

conditions imposed by this Court. He would submit that in similar

circumstances, this Court suspended the sentence and released the

accused on bail. In support, the learned counsel has produced the

order dated 31.5.2019 passed in Criminal Appeal No.11 of 2018

(Mangte Indramani alias Soso Koireng v. State of Manipur) and order

dated 07.12.2020 passed in M.C.(Criminal Appeal No.11 of 2020

(Lianpu Simte @ Tuankhanlian v. State of Manipur).

[9] According to the learned counsel for the petitioner, the

petitioner was on bail during trial and he had fully co-operated in the

trial by putting his personal appearance in almost all the hearing dates

fixed by the learned Special Judge and he never violated any terms

and conditions of his releasing on bail during the whole proceeding of

the trial. It is the say of the petitioner that he is the breadwinner of the

family and he has to look after his wife and children.

Mc(cril.appeal) no. 32 of 2020. Page 5 [10] The learned counsel for the petitioner urged that detention

of the petitioner during pendency of the appeal is a severe punishment

to all his family members and prays for suspension of sentence

pending appeal.

[11] The learned counsel next submitted that when a convicted

person is sentenced to a fixed period of sentence and when the convict

files an appeal under any statutory right, suspension of sentence can

be considered by the appellate Court liberally unless there are

exceptional circumstances.

[12] Per contra, the learned Additional Public Prosecutor

submitted that the trial Court minutely dealt with the submissions

advanced by both the parties in deciding the case and the same has

been recorded in the impugned judgement. Therefore, which version is

more trustworthy and/or convincing to accept in deciding the case is to

be considered at the time of hearing the appeal on merit and not at this

stage. He would submit that whether the burden of proof cast upon the

accused was properly discharge in the eye of law by the accused or not

is required to be examined at the time of hearing the appeal, but not at

this interim stage.

Mc(cril.appeal) no. 32 of 2020. Page 6 [13] The learned Additional Public Prosecutor further submitted

that the allegation of non-compliances of Sections 41 and 42 of NDPS

Act is categorically denied on the ground that the trial Court had

exhaustively dealt with the issue as raised by the petitioner in the

impugned judgment and therefore, no further proof is required unless

the petitioner proved otherwise.

[14] The learned Additional Public Prosecutor then submitted

that whether the story of the prosecution lacks credibility or not can

only be ascertained by examining the evidences available on record in

entirety. Likewise, whether the sentence order is illegal or not can only

be ascertained only after the entire evidences are examined by the

appellate Court. Hence, it would be too premature to arrive at any

conclusion for suspending the impugned sentence. The learned

Additional Public Prosecution finally submitted that the petitioner is not

entitled to the benefit of Section 389(1) Cr.P.C. and therefore, prayed

for dismissal of the petition.

[15] This Court considered the submissions made by the

learned counsel appearing on either side and also perused the

materials available on record.

Mc(cril.appeal) no. 32 of 2020. Page 7 [16] The petitioner was convicted under Section 18(b) of the

NDPS Act, 1985 and sentenced to undergo rigorous imprisonment of

15 years and to pay a fine of Rs.1 lakh, in default to undergo six

months imprisonment. The judgement of the learned Special Judge is

dated 26.06.2020 and sentence was imposed on 30.06.2020 and from

30.06.2020 onwards, the petitioner was in jail.

[17] In the instant case, the petitioner challenged the

judgement of the learned Special Judge on various grounds as could

be seen from the grounds of appeal. The petitioner has raised a ground

that the learned Special Judge lost sight to the non-compliance of the

mandatory provision of the NDPS Act, more particularly, Sections 41

and 42 of the Act. The petitioner has also raised a ground that the

prosecution failed to produce the polythene bag with a mark WIN,

which was included in the seizure list. The petitioner also stated that

the trial Court has recorded in the finding that the PWs had stated that

opium was not seized from the petitioner.

[18] By placing reliance upon the decisions in the cases of

Dadu alias Tulsidas v. State of Maharashtra, (2000) 8 SCC 437 and

Union of India v. Attan Malik @ Habul, (2009) 2 SCC 624, the

Mc(cril.appeal) no. 32 of 2020. Page 8 learned Additional Public Prosecutor submitted that person convicted

under the NDPS Act is not entitled to seek suspension as a matter of

right on the basis that provision in Section 32-A depriving Courts of the

power of suspending sentence had been held to be void.

[19] In Dadu alias Tulsidar (supra), the Apex Court held:

"25. Judged from any angle, the section insofar as it completely debars the appellate courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32-A insofar as it ousts the jurisdiction of the court to suspend the sentence awarded to a convict under the Act is unconstitutional. We are, therefore, of the opinion that the Allahabad High Court in Ram Charan case (1991) 9 LCD 160 (All) has correctly interpreted the law relating to the constitutional validity of the section and the judgment of the Gujarat High Court in Ishwar Singh M.Rajput case (1990) 2 Guj LR 1365 cannot be held to be good law."

[20] Thus, the prayer for suspension of sentence should be

considered liberally unless there is any statutory restriction. Further,

Section 32-A of NDPS Act does not in any way affect the powers of the

Mc(cril.appeal) no. 32 of 2020. Page 9 authorities to grant parole and a sentence awarded under the Act can

be suspended by the appellate Court.

[21] At this juncture, it is pertinent to note the decision of the

Hon'ble Supreme Court in the case of Bhagwan Rama ShindeGosai

and others v. State of Gujarat, (1999) 4 SCC 421. The said case

deals with suspension of sentence that when a convicted person is

sentence to a fixed period and when the convict files an appeal under

any statutory right, suspension of sentence can be considered by the

appellate Court liberally unless there are exceptional circumstances.

[22] In Bhagwan Rama ShindeGosai (supra), the Honourable

Supreme Court held:

"3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose

Mc(cril.appeal) no. 32 of 2020. Page 10 of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence, so as to make the appeal right, meaningful and effective. Of course, appellant courts can impose conditions when bail is granted."

[23] According to the petitioner, the arresting officer has failed

to comply with the provisions of Section 50 of the NDPS Act. Section

50 of the Act is meant basically to protect an individual against the false

implication by the police. If this protection is sought to be denied by the

police, then this is one of the reasons which can lead, and is leading,

the Court in the present case, to come to a prime facie, but reasonable

satisfaction that the petitioner might not have been involved in the

crime alleged.

[24] Where an appeal is preferred against conviction under the

NDPS Act in the High Court, The High Court has ample power and

discretion to suspend the sentence. That discretion has to be exercised

judiciously depending upon the facts and circumstances of each case.

Mc(cril.appeal) no. 32 of 2020. Page 11 While considering the suspension of sentence, each case is to be

considered on the basis of the nature of the offence, the manner in

which the occurrence had taken place, whether bail granted earlier had

been misused. There was no straitjacket formula which could be

applied in exercising discretion and the facts and circumstances of

each case would govern the exercise of judicious discretion while

considering an application file by a convict under Section 389 Cr.P.C.

[25] It is to be mentioned that the appeal is of the year 2020

and due to practical the appeal cannot be taken up in the near future

and disposed of expeditiously. The petitioner pleaded that his wife was

suffering kidney disease and is undergoing a regular hemodialysis

therapy in the form of bicarbonate dialysate and he is the sole

breadwinner of the family and he has to look after his ailing wife. The

petitioner also produced the medical records of his wife. However, the

said medical records have not been rebutted by the respondent

prosecution.

[26] On overall analysis of the matter, this Court is of the view

that the prayer for suspension of sentence should be considered

liberally unless there is any statutory restriction. Further, Section 32-A

Mc(cril.appeal) no. 32 of 2020. Page 12 of the NDPS Act does not in any way affect the powers of the

authorities to grant parole and a sentence awarded under the Act can

be suspended by the appellate Court. Considering the facts and

circumstances of the instant case and that the appeal would take

substantial time to come up for final hearing, without expressing

anything on the merits of the appeal and there are arguable points

involved in the appeal, this Court finds that this is a fit case to suspend

the sentence imposed on the petitioner pending appeal, However,

subject to stringent conditions.

[27] Accordingly, the sentence imposed on the petitioner in

special Trial Case No.113/2015/16 of 2016 dated 30.06.2020 on the file

of the learned Special Judge, NDPS, Lamphelpat, Imphal, Manipur

alone is suspended, subject to the compliance of the following

conditions by the petitioner:

(a) The petitioner is directed to be released on bail on his

furnishing a personal bond for Rs.1 lakh (Rupees One

Lakh) with two sureties in the like sum to the

satisfaction of the learned Special Judge, ND&PS,

Lamphelpat, Imphal, Manipur.

Mc(cril.appeal) no. 32 of 2020. Page 13

(b) The petitioner, on his being enlarged on bail, is

directed to report before the learned Special Judge,

ND&PS, Lamphelpat, Imphal, Manipur on all Tuesday

and Fridays at 10.00 A.M. till the disposal of the

appeal pending before this Court.

Affairs Police Station on the First Monday of every

month at 10.00 A.M.

(d) The petitioner shall not indulge in any criminal

activities during the period of suspension of sentence.

(e) The Border Affairs Police is directed to monitor the

petitioner and if they find the petitioner involved in any