Manipur High Court

Shamurailatpam Sushil vs State Of Manipur on 3 August, 2022

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SHAMURAILATP
                                          IN THE HIGH COURT OF MANIPUR
AM SUSHIL                                           AT IMPHAL
SHARMA                                           MC(Crl.A.) No. 10 of 2021
Digitally signed by                              Ref:- Crl.A. No. 5 of 2021
SHAMURAILATPAM SUSHIL
SHARMA
Date: 2022.08.05 10:30:09    Mr. Tungkkhan Mung Zou @ Mung Zou @ Aric, aged
+05'30'                      about 19 years, S/O Ginzamuan of Moreh Ward No. 2,
                             Gammon Veng, TPL District, Manipur, a/p Mantripukhri
                             Lamlongei Vaiphei Veng, I/W Manipur-795001.

                                                                            .....Applicant

                                                 -Versus-

                             State of Manipur

                                                                        .... Respondents.

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

For the Applicant :: Mr. L. Seityandra, Advocate

For the Respondent :: Mr. H. Samarjit, PP

Date of Hearing and Reserving Judgment & Order :: 13.05.2022

Date of Judgment & Order :: 03.08.2022

JUDGMENT AND ORDER (CAV)

This petition has been filed by the petitioner under Section

389 Cr.P.C. praying to suspend the execution of the judgment

dated 17.12.2020 and order of sentence dated 28.12.2020 passed

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by the learned Special Judge, Manipur in Special Trial Case

No.100 of 2018 till the disposal of the appeal and to grant bail to

the petitioner.

2. The petitioner, who has been arrayed as accused

No.2 in Special Trial Case No.100 of 2018 on the file of the learned

Special Judge, ND&PS, Manipur at Lamphelpat was convicted

under Sections 21(c)/22(c) and Section 29 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 [for short, "the said Act"]

and sentenced to undergo 15 years rigorous imprisonment each

and to pay fine of Rs.1,00,000/- each to be paid within a period of

one year from the date of sentence, failing which the petitioner

shall serve another six months rigorous imprisonment.

Challenging the conviction and sentence imposed on the

petitioner, he has filed the criminal appeal before this Court.

3. Along with the appeal, the petitioner has filed the

petition seeking to suspend the sentence stating that he has a very

good case on merits and likely to succeed in the appeal filed by

him on the ground that the mandatory provisions as prescribed

under the said Act were not complied with by the prosecution.

4. The learned counsel for the petitioner submitted that

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

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

would submit that the petitioner was aged 19 years at the time of

the alleged occurrence and he was released on bail by this Court

on 19.8.2020 and while he was on bail, he did not attempt to

abscond or tamper with any prosecution witnesses to hamper the

trial.

5. The learned counsel further 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 and

for bail pending appeal and that the petitioner undertakes to abide

by the conditions imposed by this Court.

6. The learned counsel then submitted that Section 32-

A of the said 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 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. The learned counsel for the petitioner next submitted

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

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operated in the trial by putting his personal appearance in 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. 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

thus prays for suspension of sentence pending appeal.

8. Per contra, Mr. H. Samarjit, 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)/22(c) read with Section 29 of the said Act and

sentenced to undergo 15 years of rigorous imprisonment and to

pay fine, 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.

9. The learned Additional Public Prosecutor then

submitted that the Investigating Officer has examined number of

witnesses in connection with the case and from their oral

evidences and the documents produced by the prosecution, the

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learned Special Judge rightly came to the conclusion that the

prosecution has proved its case beyond reasonable doubt against

the petitioner and, accordingly, convicted the petitioner and

imposed sentence aforesaid.

10. The learned Additional Public Prosecutor further

submitted that the prosecution has proved the seizure 80,000 nos.

of WY tablets and 2.677 kgs of heroin powder from the

unauthorized possession of the petitioner. The learned Additional

Public Prosecutor 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

sentence does not arise. Further, the learned Additional Public

Prosecutor submitted that the petitioner is not entitled to be

released on bail during the pendency of the appeal at this early

stage in order to maintain the balance of rules of law vis-a-vis

public confidence on judiciary and personal liberty of the convict.

Arguing so, the learned Additional Public Prosecutor submitted

that this Court cannot show any indulgence to the petitioner and,

thus, prayed for dismissal of the petition.

11. This Court considered the submissions made by the

learned counsel appearing on either side and also perused the

materials available on record.

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12. The petitioner was convicted under Section

21(c)/22(c)/29 of the said Act and sentenced to undergo rigorous

imprisonment of 15 years each and to pay a fine of Rs.1,00,000/-

each, in default to undergo six months rigorous imprisonment. The

trial Court ordered that the sentences shall run concurrently. The

judgment of the learned Special Judge is dated 17.12.2020 and

sentence was imposed on 28.12.2020. The fact also remains that

the petitioner is in judicial custody from 28.12.2020.

13. 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 at the time of the alleged commission of the

offence, he was aged 19 years and he had no knowledge nor

motive nor intention in respect of the alleged seized drugs.

According to the petitioner, there is nothing on record to show that

the petitioner has committed the offence alleged against him.

According to the petitioner, there is not a shred of evidence to

show that narcotic drug or psychotropic substances or controlled

substance was seized from the possession of the petitioner. In

fact, the learned Special Judge has not analysed the evidence in

the correct perspective and the petitioner was convicted based on

the evidence of P.W.3 whose evidence is defective evidence and

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the prosecution cannot rely on the same. Further, the petitioner

cannot be convicted under Section 29 of the Act without any

evidence of abetment and criminal conspiracy. As such, the

impugned judgment and sentence are liable to be set aside.

14. According to the learned counsel for the petitioner,

there is violation of Section 41(2) of the Act and that the arresting

authority has not complied with Section 50 of the said Act at the

time of search and seizure.

15. In Kailash Chowdhury v. State of Assam, 2001 (3)

GLT 184, the Gauhati High Court held that search, seizure, arrest

and investigation in violation of Sections 41 and 42 of the said Act

is illegal and the trial on the basis of illegal search, seizure and

investigation held vitiated.

16. In Beikhokim alias VeikhokinKukini v. State of

Manipur, 1996(II) GLT 449, the Full Bench of Gauhati High Court

held as under:

"14. On the question whether recording of the informationin writing, as required u/s 42(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

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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 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

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prosecution case and therefore vitiates the trial."

17. In Roy V.D. v. State of Kerala, (2000) 8 SCC 590, the

Hon'ble Supreme Court held:

"14. Sub-section (2) of Section 42 contains a procedural directive to the officer who takes down 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."

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

212, 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 can 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)."

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19. It appears that one of the grounds urged by the

petitioner for setting aside the impugned judgment is that the

mandatory provisions as prescribed under Sections 41 and 42 of

the said Act were not complied with by the arresting authority at

the time of arrest and seizure of the alleged contraband. Further,

according to the petitioner, he was aged 19 years at the time of

the alleged crime and he had no knowledge in respect of the

alleged seized drugs. The said aspect of the matter cannot be

gone into at this stage, as the same would involve arguments,

coupled with the judicial pronouncements in that regard.

20. 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.

21. The learned counsel for the petitioner contended that

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

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

22. Under Section 32-A of the said 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

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right of the Court to suspend the sentence of a person convicted

under the said 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 said Act is

valid. The said decision further clarifies that the appellate Court

can suspend sentence imposed under the said Act, subject to the

conditions set out in Section 37 of the said Act.

23. At this juncture, it is pertinent to refer Section 37 of

the said Act, which reads thus:

"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 opposes the application, the Court is satisfied that there

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

24. 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."

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25. Time and again, the Hon'ble Supreme Court and this

Court held 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.

26. 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 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 endeavourshould 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 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

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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."

27. 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 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.

28. In the instant case, as could be seen from the

grounds of appeal, the petitioner has challenged the judgment of

the learned Special Judge on various grounds and he has got

arguable case. It is to be noted that originally there were 13

accused and the learned Special Judge acquitted all others except

the petitioner who being accused No.4 and one Tung Khan

MungZou @ MungZou, accused No.2 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

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entitled to suspension of sentence pending appeal. As stated

supra, the Hon'ble Supreme Court in the case of Bhagwan Rama

Shinde Gosai (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.

29. As stated supra, the Hon'ble Supreme Court in the

case of Bhagwan Rama Shinde Gosai (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.

30. Where an appeal is preferred against conviction

under the said Act before 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

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facts and circumstances of 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.

31. In the instant case, the learned Additional Public

Prosecutor has been given an opportunity to oppose the present

application for release and the learned Additional Public

Prosecutor also opposed the application. However, prima facie,

this Court is satisfied that there are reasonable grounds in the

appeal to succeed.

32. In the instant case, though the petitioner was initially

arrested, on 19.8.2020 he was released on bail and from

28.12.2020 he was in judicial custody. That apart, as rightly

argued by the learned counsel for the petitioner the appeal is of

the year 2020 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

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sentence imposed on the petitioner pending appeal, however,

subject to stringent conditions. The petitioner also undertakes that

while on bail he will not likely to commit any offence.

33. 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

petitioner/appellant.

34. Accordingly, the sentence imposed on the petitioner

in Special Trial Case No.100 of 2018 dated 28.12.2020 on the file

of the learned Special Judge, (NDPS), Manipur at Lamphelpat

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, (NDPS), Manipur at

Lamphelpat.

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

is directed to report before the learned

Special Judge, NDPS, Manipur at

Lamphelpat on all Tuesdays and Fridays at

10.00 A.M. till the disposal of the appeal

pending before this Court.

Border 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.