Rajasthan High Court - Jodhpur

Shiv Ram vs Union Of India ... on 19 August, 2023

Bench: Farjand Ali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 661/2022

Shiv Ram S/o Sh. Sanwant Ram, Aged About 43 Years, By Caste Bishnoi, R/o Village Beru Post Beru Police Station Rajeev Gandhi Nagar, Tehsil Mandore, District Jodhpur. (At Present Lodged In District Jail, Bhilwara).

                                                                  ----Petitioner
                                   Versus
Union Of India, Through Ncb
                                                                ----Respondent


For Petitioner(s)           :   Mr. B. R. Bishnoi
For Respondent(s)           :   Mr. M. R. Pareek, PP



             HON'BLE MR. JUSTICE FARJAND ALI

                                    Order

19/08/2023

1. The instant application for suspension of sentence has been

moved in connection of the judgment impugned dated 09.12.2019

passed by the Learned Special Judge, NDPS Cases, Bhilwara in

Sessions case No. 63/2017 whereby the accused appellant has

been convicted and sentenced to suffer maximum imprisonment of

12 years under Sections 8/15 of NDPS Act.

2. It is contended on behalf of the applicant that the learned

trial Judge has not appreciated the correct, legal and factual

aspects of the matter and thus, reached at an erroneous

conclusion of guilt, therefore, the same is required to be

appreciated again by this court being the first appellate Court. He

submits that there are several flaws in the prosecution case on the

basis of which the judgment of conviction is not sustainable. The

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appellant has spent about 6 years and 04 months in custody and

he has served more than half of the sentence, if he is not released

on bail the very purpose of filing the appeal would be frustrated.

He places reliance on the judgment passed by Hon'ble the

Supreme Court in Satender Kumar Antil Vs. Central Bureau of

Investigation reported in (2021) 10 SCC 773 to support his

argument that looking to the long period of incarceration, the

sentence of the applicant deserves to be suspended. As the

hearing of the appeal will take long time to conclude, therefore,

learned counsel for the appellant submits that the sentence

awarded to the accused-appellant may be suspended.

3. Per contra, learned Public Prosecutor vehemently opposes

the prayer made by learned counsel for the accused-appellant and

submits that the matter pertains to recovery of 755.5 kilograms of

poppy husk and the judgment of conviction passed by learned

Court below does not warrant any interference. The impediment

contained under Sections 32-A and 37 of NDPS Act will be

attracted in the factual situation of the present case.

4. As far as the question of fetter contained under Section 37 of

NDPS Act is concerned, this Court is aptly guided by the recent

ruling titled Mohd Muslim @ Hussain Vs. State (NCT of Delhi)

passed by Hon'ble the Supreme Court in Special Leave Petition

(Crl.) No. 915 of 2023 vide order dated 28.03.2023, wherein

Section 37 of the NDPS Act has been discussed in detail and the

accused was allowed to be released on bail while holding that the

impediment contained under Section 37 is not a bar to grant of

bail in cases where there is undue delay in conclusion of trial. The

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paragraphs of the afore-mentioned judgment relevant to the

present matter are reproduced below:

"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the Accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, Code of Criminal Procedure) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the Accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the Accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the Accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the Accused and the likelihood of them not committing any offence upon release. This Court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when Accused of offences enacted under special laws - be balanced against the public interest.

19. A plain and literal interpretation of the conditions Under Section 37 (i.e., that Court should be satisfied that the Accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore,

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the only manner in which such special conditions as enacted Under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the Accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person Accused of offences such as those enacted Under Section 37 of the NDPS Act."

5. In Rabi Prakash Vs. State of Odisha passed in Special

leave to Appeal (Crl.) No.(s) 4169/2023, Hon'ble the Apex Court

has again passed an order dated 13 th July, 2023 dealing this issue

and has held that the provisional liberty (bail) overrides the

prescribed impediment in the statute under Section 37 of the

NDPS Act as liberty directly hits one of the most precious

fundamental rights envisaged in the Constitution, that is, the right

to life and personal liberty contained in Article 21.

6. In view of the guidelines propounded by Hon'ble the

Supreme Court in the case of Satender Kumar Antil (supra)

on the subject of bail on the ground of long period of

incarceration, the sentence of the present applicant deserves to be

suspended. The relevant paragraphs of the afore-mentioned

judgment are as follows:-

"41. Sub-section (2) has to be read along with Sub- section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so

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notwithstanding the beneficial provision Under Section 436A of the Code which stands on a different footing.

42. ......

43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available Under Section 436A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant.

44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436A of the Code among other factors ought to be considered for a favourable release on bail."

(Emphasis Supplied)

7. The accused-appellant is behind the bars since almost 6

years and 4 months in total and the hearing of appeal is likely to

take further more time, therefore, considering the overall facts

and circumstances of the case, while refraining from passing any

comments on the niceties of the matter and the defects of the

prosecution as the same may put an adverse effect on hearing of

the appeal, this court deems its appropriate to suspend the

sentence awarded to the appellant till the final disposal of the

appeal.

8. Accordingly, the application for suspension of sentence filed

under Section 389 Cr.P.C. is allowed and it is ordered that the

sentence passed by the Learned Special Judge, NDPS Cases,

Bhilwara in Sessions case No. 63/2017 vide judgment dated

09.12.2019 against the appellant-applicant- Shiv Ram S/o Sh.

Sanwant Ram, shall remain suspended till final disposal of the

aforesaid appeal and he shall be released on bail provided he

executes a personal bond in the sum of Rs.50,000/-with two

sureties of Rs.25,000/- each to the satisfaction of the learned trial

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Judge for his appearance in this court on 26.09.2023 and

whenever ordered to do so till the disposal of the appeal on the

conditions indicated below:-

1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.