Manipur High Court

Md. [email protected] Shahbuddin vs State Of Manipur on 18 June, 2021

KABORAMB                                                                     Page 1 of 19

AM LARSON
Digitally signed by
KABORAMBAM LARSON           IN THE HIGH COURT OF MANIPUR
Date: 2021.06.21                      AT IMPHAL
12:45:36 +05'30'
                                 MC(Cril.Appeal) No.11 of 2019
                               in Criminal Appeal No.21 of 2019

                      Md. [email protected] Shahbuddin, aged about 41 years,
                      S/o Md. Nizamuddin, resident of LilongTairelMakhong, P.O.
                      & P.S. Lilong - 79513, Thoubal District, Manipur.


                                                                      ....... Applicant/s

                                                 - Versus -


                      State of Manipur
                                                                     .... Respondent/s

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

For the Applicant/s : Mr. R.S. Reisang, Advocate

For the Respondent/s : Mr. Y. Ashang, Learned PP

Date of Hearing : 16.04.2021

Judgment & Order : 18.06.2021

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

JUDGMENT &ORDER (CAV)

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

Section 389(1) Cr.P.C. praying to suspend the operation of the

judgment and order dated 01.10.2019 and the order of sentence dated

08.10.2019 passed by the learned Special Judge, ND&PS (FTC),

Manipur in Special Trial Case No.167 of 2018 and to release the

petitioner on bail during the pendency of the appeal.

[2] The petitioner, who has been arrayed as first accused in

Special Trial Case No.167 of 2018 on the file of the learned Special

Judge, ND&PS (FTC), Manipur, was convicted under Section 21(c)

1985 and sentenced to undergo 13 years rigorous imprisonment with a

fine of Rs.1,30,000/- under Section 21(c) and to undergo 7 years

rigorous imprisonment with a fine of Rs.70,000/- under Section 22(b) of

the ND&PS Act to be paid within a period of four months from the date

of sentence, failing which the petitioner shall serve simple

imprisonment for a further period of two years. Challenging the

conviction and sentence imposed on the petitioner, the petitioner has

filed the criminal appeal before this Court.

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

[3] Along with the appeal, the petitioner has filed petition

seeking to suspend the sentence stating that he has a very good case

on merits and likely to succeed the appeal filed by him on the ground

that the mandatory provisions as prescribed under Sections 41 and 42

of the ND&PS Act were not complied with by the arresting authority at

the time of arrest and seizure of the alleged contraband.

[4] The learned counsel for the petitioner submitted that

there are lot of infirmities in the impugned judgment and that the

petitioner has got good case on merits in succeeding the appeal. He

would submit that the petitioner has got family and he has to look after

the family. The learned counsel further submitted that the petitioner

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

brought from Manipur Central Jail, Sajiwa.

[5] The learned counsel next submitted that the 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.

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

[6] The learned counsel further submitted that Section 32-A

of the ND&PS Act so far as it ousts the jurisdiction of the Court to

suspend the sentence imposed on a convict under the Act is

unconstitutional and that when a convicted person is sentenced to a

fixed period of sentence and when the 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.

[7] It is also the submission of the learned counsel for the

petitioner that recording of information in writing and the proviso for

recording of grounds on his belief while carrying out arrest and search

of vehicle are mandatory under Section 42 of the ND&PS Act and

consequently, failure to comply with those requirements would vitiate

the trial as held by the Hon'ble Supreme Court. In the instant case, the

arresting authority has violated the mandatory provision provided under

the Act.

[8] The learned counsel then submitted that the provisions

under Sections 41 and 42 are meant basically to protect an individual

against the false implication by the arresting authority and if this

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

protection is sought to be denied by the arresting authority, then this is

one of the reasons which can lead this Court may come to a prima

facie,but reasonable satisfaction that the petitioner might not had been

involved in the crime alleged.

[9] 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. The learned counsel for the petitioner then

submitted that in similar circumstances, this Court suspended the

sentence and released the accused on bail.

[10] 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 proceedings of

the trial.

[11] The learned counsel for the petitioner urged that the

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

punishment to all his family members and prays for suspension of

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

sentence pending appeal. In support, the learned counsel for the

petitioner relied upon the following decisions:

(i) Kailash Chowdhury v. State of Assam, 2001 (2) GLT 184.

(ii) Beikhokim alias VeikhokinKukini v. State of Manipur, 1996(II) GLT 449 FB.

(iii) Roy V.D. v. State of Kerala, (2000) 8 SCC 590.

(iv) Sukhdev Singh v. State of Haryana, (2013) 2 SCC

[12] Per contra, the learned Additional Public Prosecutor

submitted that the petitioner is not entitled to suspension of sentence,

as it is barred by Section 32-A of the Act. He would submit that since

the petitioner was convicted under Sections 21(c) and 22(b) of the Act

and sentenced to undergo 13 years of rigorous imprisonment and also

the petitioner is aged 41 years old, he is not entitled to suspension of

sentence. The learned Additional Public Prosecutor further submitted

that the High Court cannot override the bar provided under Section 32-

A of the Act and that the petitioner is not entitled to the benefit of

Section 389 Cr.P.C. and therefore, the benefit cannot be extended to

him.

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

[13] The learned Additional Prosecutor then submitted that

there are various situations such as chance discovery or discovery of

contraband during the normal routine frisking etc. where compliance of

the provisions of Sections 41 and 42 is not required and in this regard

the law is well settled. He would submit that unless the matter is

considered on merits, one cannot jump to a conclusion that the

petitioner has a good case to succeed the appeal merely on the ground

that he had raised this issue in the grounds of appeal.

[14] The learned Additional Public Prosecutor next submitted

that there is no illegality and infirmity in passing the impugned judgment

and the consequential sentence and therefore, the question of

suspension of the said judgment and order and its sentence does not

arise at this stage. Further, the learned Additional Public Prosecutor

submitted that the petitioner is not entitled to release on bail during the

pendency of the appeal at this early stage in order to maintain the

balance of rules of law vis-à-vis public confidence on judiciary and

personal liberty of the convict.

[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.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

[16] The petitioner was convicted under Section 21(c) and

22(b) of the ND&PS Act, 1985 and sentenced to undergo rigorous

imprisonment of 13 years and to pay a fine of Rs.1,30,000/- under

Section 21(c) and 7 years rigorous imprisonment and to pay fine of

Rs.70,000/- under Section 22(b), in default to undergo two years simple

imprisonment. The judgment of the learned Special Judge is dated

01.10.2019 and sentence was imposed on 08.10.2019 and from

08.10.2019 onwards, the petitioner was in jail.

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

judgment 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 failed to appreciate the law laid down by

the Apex Court qua arrest and search by an officer not empowered or

authorized. The petitioner has also raised a ground that the informant

P.W.3 has stated that he did not give information in writing to his

immediate superior regarding the search of the vehicle and the arrest of

four persons under Section 42 of the Act, which is mandatory and

consequently the failure to comply with the requirement would vitiate

the trial. The petitioner also challenged the impugned judgment on the

ground that the trial Court erred in convicting the petitioner under

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

Section 21(c) of the Act, as the seized contraband are controlled

substance and not narcotic drugs and as such the impugned judgment

and sentence are liable to be set aside.

[18] In Kailash Chowdhury (supra), the Gauhati High Court

held that search, seizure, arrest and investigation in violation of

Sections 41 and 42 of the ND&PS Act is illegal and the trial on the

basis of illegal search, seizure and investigation held vitiated.

[19] In Beikhokim(supra), the Full Bench of Gauhati High

Court held as under:

"14. On the question whether recording of the information in writing, as required u/s 41(1) is mandatory or not, reference may also be made to sub-section (2) of Section 42 which provides that where an officer takes down any information in writing under sub-section (1) or record grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate superior official. The provision clearly brings out intention of the legislature to make the aforesaid provision under Section 42(1) regarding recording of the information, if any , in writing to be mandatory. In fact in the last sub-paragraph of paragraph 15 of the judgment of Balbir Singh's case (supra) Supreme Court clearly observed in unqualified and unambiguous terms that the aforesaid

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

requirement of Section 42(1) is mandatory. Supreme Court in that case observed as follows:

"The object of NDPS Act is to make stringent provision for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, those provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the relief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with those requirements thus affects the prosecution case and therefore vitiates the trial."

[20] In Roy V.O. (supra), the Hon'ble Supreme Court held:

"14. Sub-section (2) of Section 42 contains a procedural directive to the officer who take sdown any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto to send forthwith a copy thereof to his immediate official superior."

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

[21] In Sukhdev Singh (supra), the Hon'ble Supreme Court

held:

"25. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non- compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purposes of the provisions of Section 42 which an broadly be stated are that: (a) it is mandatory provision which ought to be construed and complied with strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post-recovery (sic prior to recovery)."

[22] It appears that the main ground urged by the petitioner

for setting aside the impugned judgment is that the mandatory

provisions as prescribed under Section 41 and 42 of the ND&PS Act

were not complied with by the arresting authority at the time of arrest

and seizure of the alleged contraband. At this stage, the said aspect

of the matter cannot be gone into, as the same would involve

arguments, coupled with the judicial pronouncements in this regard.

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

[23] Now the point that arises for consideration is whether

the petitioner is entitled to suspension of sentence imposed on him by

the learned Special Judge pending appeal.

[24] The learned counsel for the petitioner contended that

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

the petitioner has got family and he has to look after his family.

[25] Under Section 32-A of the ND&PS Act, no sentence

awarded under the Act shall be suspended or remitted or commuted.

However, the Hon'ble Supreme Court in Dadu alias Tulsidas v. State

of Maharashtra, (2000) 8 SCC 437 held that Section 32-A is

unconstitutional to the extent it takes away the right of the Court to

suspend the sentence of a person convicted under the Act. In the said

decision, the Hon'ble Supreme Court held that taking away of the right

of the executive to suspend, remit and commute sentences under the

Act is valid. The said decision further clarifies that the appellate Court

can suspend sentence imposed under the Act, subject to the

conditions set out in Section 37 of the Act.

[26] At this juncture, it is apposite to refer Section 37 of the

Act, which reads thus:

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

"37. Offences to be cognizable and non-bailable :

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973:-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act 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 oposes 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.

(iii) 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 or any other law for the time being in force, on granting bail."

[27] In Dadu alias Tulsidar(supra), the Hon'ble Apex Court

held:

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

"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."

[28] It is settled that when a convicted person is sentenced

to a fixed period of sentence and the appellate Court finds that due to

practical reasons the appeal cannot be disposed of expeditiously, it

can pass appropriate orders for suspension of sentence.

[29] In Bhagwan Rama ShindeGosai and others v. State of

Gujarat, (1999) 4 SCC 421, the Hon'ble 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

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

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 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 be 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, appellate courts can impose similar conditions when bail is granted."

[30] In Union of India v. Ram Samujh and another, (1999) 9

SCC 429, the Hon'ble Supreme Court held that the jurisdiction of the

Court to grant bail is circumscribed by the aforesaid Section of the

Act. The bail can be granted and sentence suspended in a case

where there are reasonable grounds for believing that the accused is

not guilty of the offence for which he is convicted and he is not likely

to commit any offence while on bail and during the period of

suspension of sentence.

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

[31] In the instant case, the appellant challenged the

judgment of the learned Special Judge on various grounds as could

be seen from the grounds of appeal and the petitioner has got

arguable case. It is to be noted that there are two accused in this case

and the learned Special Judge acquitted the second accused from the

charges. Anyhow, this Court is not concerned with the merits of the

appeal and the concern is only with regard to the point whether the

petitioner is entitled to suspension of sentence pending appeal.

[32] As stated supra, the Hon'ble Supreme Court in the

case of Bhagwan Rama ShindeGosai(supra), held that the prayer for

suspension of sentence pending appeal should be considered liberally

unless there is any statutory restriction. As per the decision of the

Hon'ble Supreme Court in the case of Dadu alias Thulsidas(supra),

Section 32-A of the ND&PS 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.

[33] Where an appeal is preferred against conviction under

the ND&PS 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

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

each case. While considering the suspension of sentence, each case

has 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 filed by a convict under

Section 389 Cr.P.C.

[34] In the instant case, the appeal is of the year 2019 and

due to practical reasons, the appeal cannot be taken up in the near

future and disposed of expeditiously. Therefore, this Court finds that

this is a fit case to suspend the sentence imposed on the petitioner

pending appeal, however, subject to stringent conditions.

[35] As stated supra, in the light of the decision of the

Hon'ble Supreme Court in the case of Bhagwan Rama

ShindeGosai(supra), and the fact that the present appeal would take

substantial time to come up for final hearing, without expressing any

opinion on the merits of the appeal, this Court is inclined to suspend

the sentence imposed on the appellant.

MC(Cril. Appeal) No.11 of 2019 Ref:- Criminal Appeal No.21 of 2019

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

Special Trial Case No.167 of 2018 dated 08.10.2019 on the file of the

learned Special Judge, ND&PS (FTC), 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 (FTC), Manipur.

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

to reportbefore the learned Special Judge, ND&PS

(FTC), Manipur on all Tuesdays and Fridays at 10.00

A.M. till the disposal of the appeal pending before this

Court.