Ravikumar v. State By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.07.2024
CORAM
THE HON'BLE MR.JUSTICE M.DHANDAPANI Crl.MP.No.10666 of 2024 and Crl.A No.970 of 2024 Ravikumar ... petitioner -VsThe Inspector of Police, NIBCID, Kancheepuram.
Cr. No.45/2019 ... Respondent Prayer : Criminal Miscellaneous Petition has been filed under Sections 389 (i) of the Criminal Procedure Code, to suspend the sentence imposed on the petitioner by order dated 21.03.2024 in CC.No.21/2020 on the file of the learned Principal Special Court under Ec & NDPS Act, Chennai and release the petitioner on bail till the disposal of the appeal. For petitioner : Mr.O.Chembulingam For Respondent : Mrs.G.V.Kasthuri Additional Public Prosecutor
O R D E R
The Criminal Appeal has been filed as against the Judgment passed by the learned Principal Special Court under EC & NDPS Act, Chennai dated 21.03.2024 in CC.No.21 of 2020 convicting the petitioner for the commission of offence under Section 8(c) read with 20(b)(ii)(B) of the NDPS Act and sentencing him to undergo RI for 5 years and to pay a fine of
Rs.50,000/- in default, to under six months RI. Challenging the said judgment, the petitioner has filed the above appeal and miscellaneous petition seeking suspension of sentence of imprisonment.
2. The case of the prosecution is that on 03.11.2019, on search, the respondent police was found in a possession of 2 Kgs. Ganja in his bag and the same were seized after drawing necessary samples and it was sealed and put a cover. After completing the investigation, the respondent filed a complaint against the accused for the offence under sections 8(c) read with 20(b)(ii)(B) of NDPS Act.
3. The learned counsel appearing for the petitioner submitted that there are lot of material contradictions in the evidence of the prosecution and the prosecution evidence is also highly unbelievable. He would further submit that the petitioner is confined in jail from 21.03.2024 and now, he is confined in Puzhal Prison, Puzhal, Chennai and accordingly, he prays for suspension of sentence.
4. The learned Additional Public Prosecutor appearing for the respondent police submitted that the contraband seized, which was seized
from the petitioner, is not a commercial quantity. Hence, he vehemently opposed to grant of suspension of sentence.
5. The learned Counsel filed counter in this case and the relevant portion is extracted hereunder:
''4. The Sec.32A of NDPS Act was challenged before Supreme Court in Dadualias Tulsidas -vs- State of Mahasathra and the same ordered on 2.10.2000 holding that Sec.32A as void in so far as it takes the right of the courts to suspend the sentence awarded to @@ jjjjjj convict under the Act, would neither entitle such convicts @@ JJJJJ to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the courts of their legal obligations to exercise the power of suspension of sentence within the parameters Prescribed under Section 37b, of the Act. Section 37 of the Act provides. In this case, the Petitioner has not satisfied the Sec.37 of NDPS Act, the lower coon already given a finding that he is involved in this offence and convicted him.
The Petitioner has raised a lot of grounds in the appeal but not satisfied the Sec.37 of NDPS Act. As per the judgment reported in 2009(1) SCC Pg.
of the Act" and followed by judgment reported in 2021 (0) Supreme (SC) in The State (GNCT of Delhi) Narcotics Control Bureau -Vs- Lokesh Chadha. pg.360 and Supreme Court categorically reported in 2019 (2) SCC pg. 466 in State of Punjab -Vs- Rakesh Kumar held that "when during pendency of appeal accused approaches High Court for suspension of conviction, it would not be proper for High Court for commenting on merit. 2018 (13)SCC 813,- Satpal Sing -vs- The State of Panjab ,ORDER COULD NOT BE PASSED BY HIGH COURT U/S.438 OR 439 CR.P.0 WITHOUT REFEENCE TO S.37 AND WITHOUT ENTERING A FINDING ON THE REQUIRED LEVEL OF SATISFACTION - IMPUGNED ORDER SET ASIDE. And followed by in 2020 (0) Supreme (SC) 69 in State of Kerala -Vs- Rajesh, grant of bail-limitations under -in addition to s.439,cr.p.
c-recording of satisfaction that accused is not guilty, mandatory-, 2024(0) Supreme (sc)386 Shivani Tyagi -vs- State of UP & Anr, -In case of short-term imprisonment for conviction of offence suspension of sentence is normal rule and its rejection is exception-However position should be vice-versa in case of conviction for serious offences when invocation of power under S.389 is invited, (3) Mere factum of sufferance of incarceration for a particular period, in a case where life imprisonment is imposed cannot be a reason for invocation of power under S.389 Cr.P.C. without referring to relevant factors.
pending Appeal.''
6. Heard the learned counsel on both side.
7. Normally, offences under NDPS Act are offences against society and therefore the courts should be very circumspect while granting suspension of sentence. However, when the accused have been under incarceration for sometime and when there are points in the appeal, which favour the accused, then the courts should not shy from granting suspension of sentence, as the liberty of the individual would be at stake if the appeal results in acquittal at a later point of time. In this regard, the decision of the Hon'ble Supreme Court of India in the case of Rabi Prakash Vs. The State of Odisha reported in 2023 LiveLaw (SC) 533 is of relevance and the material portion of the said judgment is quoted hereunder :- "4.
As regard to the two conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with.
years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."
8. Having regard to the fact that there are arguable points involved in the criminal appeal and further, the appeal is not likely to be taken up for final hearing in the near future and also considering the fact that the accused has been under incarceration from 21.03.2024 and the contraband is not commercial quantity, applying the decision of the Hon'ble Supreme Court, I am of the considered opinion that the petitioner is entitled for the relief of suspension of sentence.
9. Accordingly, the substantive sentence of imprisonment alone is suspended and the petitioner is directed to be enlarged on bail, on the following conditions:
''(a) The petitioner is directed to deposit the entire fine amount which was ordered by the Special Court under EC & NDPS Act, Chennai to the credit in CC.No.21 of 2020 before the trial Court within a period
of two weeks from the date of receipt of copy of this order. (b) The petitioner shall execute a bail bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties each for a like sum to the satisfaction of the learned learned Special Court under EC & NDPS Act, Chennai. This bail bond shall be entertained only after the deposit of the money specified in clause (a). (c) The petitioner shall appear before the respondent police on the first working day of every month at 10.30 a.m. before the learned Special Judge, Special Court under EC & NDPS Act, Chennai, until further orders; and (d) If the petitioner fails to deposit the amount and execute the bail bond as stipulated in Clause (a) and (b), the order of interim suspension of sentence shall stand cancelled automatically without reference to this Court and the learned Judge, shall immediately issue nonbailable warrant and secure the petitioner to serve the sentence imposed against the petitioner.''
10. Further, it is made clear that, if the petitioner indulges in similar offence in the future, the suspension of substantive sentence alone granted today will automatically stand dismissed without any further reference to this Court.
11. This criminal miscellaneous petition is ordered accordingly. 29.07.2024 rli Note: Issue order copy on 29.07.2024 To
1. The Inspector of Police, NIBCID, Kancheepuram.
2. The Principal Special Court under Ec & NDPS Act, Chennai
3. The Public Prosecutor, High Court, Madras.
4. The Superintendent Central Prison, Puzhal, Chennai.
M.DHANDAPANI.,J rli Crl.MP.No.10666 of 2024 and Crl.A No.970 of 2024 29.07.2024