CRLA/201/2021
2022 Latest Caselaw 2548 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

                  SHRI JUSTICE S.K. MISHRA, J.

AND SHRI JUSTICE ALOK KUMAR VERMA, J.

18th AUGUST, 2022

CRIMINAL APPEAL NO. 201 of 2021

Between:

Babloo Pal                                          ...Appellant

and


State of Uttarakhand                                  ...Respondent


Counsel       for       the :    Mr. Pawan Mishra, learned
appellant.                       Counsel.


Counsel for the State     :    Mr. J.S. Virk, learned Deputy Advocate
                              General.

Upon hearing the learned Counsel, the Court made the following

ORDER: (per Shri S.K. Mishra, J.)

This is an application under Section 389 of the

Code of Criminal Procedure, 1973, (hereinafter referred as

"the Code" for brevity), for suspension of sentence and

grant of bail to the appellant upon appeal. The appellant

has been convicted for the offence under Section 8 read

with Section 15 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred as "NDPS Act"

for brevity) by the learned Special Judge, NDPS, Dehradun

in Special Sessions Trial No. 310 of 2019, and, as per the

order dated 25.03.2021, he has been sentenced to

undergo rigorous imprisonment for a period of twenty

years and to pay a fine of `1,00,000/-, and, in default of

payment of fine, further to undergo additional simple

imprisonment for three years.

2. In the course of hearing, the learned counsel for

the appellant would submit that there are several

contradictions in the evidences of the witnesses. He would

further submit that only Police Officials were examined to

prove the case of the prosecution and, therefore, their

evidence has to be scrutinized very carefully. He would

also rely upon the judgment of Hon'ble Supreme Court in

the case of Krishnan Chand vs. State of Himachal

Pradesh, (2018) 1 SCC 222 and would argue that the

appellant should be granted bail as the testimony of the

Police Officials cannot be relied upon in the absence of

independent corroboration.

3. Examination of the reported case reveals that, it

is a judgment on final disposal of the Criminal Appeal

before the Hon'ble Supreme Court. The Hon'ble Supreme

Court was not dealing with an application under Section

389 of the Code for suspension of sentence or grant of bail

upon appeal.

4. It is also a settled principle of law that at the

stage of Criminal Appeal also, while considering the

application under Section 389 of the Code, the Court must

keep in mind the requirement of Section 37 of the NDPS

Act before granting suspension of sentence and grant of

bail upon appeal.

5. In this case, the learned counsel only pointed

out certain discrepancies regarding the use of motorcycle,

and/ or a car for approaching the place of seizure and

some differences in the time stated to by some of the

witnesses.

6. In our considered opinion, such minor

contradictions will not have any determinative effect on

the case of the prosecution and it cannot be stated at this

stage that in the ultimate analysis, we would come to the

conclusion that the appellant is not guilty of the offence for

which he has been convicted.

7. In that view of matter, we are not inclined to

allow the application. The application for bail and

suspension of sentence, is hereby, dismissed.

8. The learned counsel for the appellant would

submit that the appellant is in custody since 2019 and his

appeal may be disposed of on merit, and a short date may

be given. However, since we are having cases of the year

2013-2014 also on board, a shorter date is not possible.

However, the case shall be taken in the 3rd week of

February. 2023.

9. The matter be listed in the third week of

February, 2023.

________________ S.K. MISHRA, J.

___________________ ALOK KUMAR VERMA, J.

Dt: 18th August, 2022 Neha/SB