Chelladurai v. State Rep. By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.07.2024
CORAM:
THE HON'BLE MR.JUSTICE M.DHANDAPANI in Crl.A.No.1132 of 2023 1.
Chelladurai 2.
Karthiresan
...Petitioners
Vs.
State rep. by, The Deputy Superintendent of Police, NIBCID, Coimbatore.
...Respondent
Criminal Miscellaneous Petition filed under Section 389(1) of Cr.P.C., to suspend the sentence imposed in C.C.No.99 of 2021 dated 08.08.2023 passed by the Special Court under EC/NDPS Act, Coimbatore and enlarge the petitioners on bail pending disposal of the above criminal appeal. For Petitioners : Mr.R.Sankarasubbu For Respondent : Mrs.G.V.Kasthuri Addl. Public Prosecutor Page No.1 of 8
ORDER
This Criminal Miscellaneous Petition has been filed seeking to suspend the sentence of imprisonment imposed on the petitioners in C.C.No.99 of 2021 by the Special Court under EC/NDPS Act, Coimbatore, vide order dated 08.08.2023 and to consequently enlarge the petitioners on bail.
2. The petitioners/appellants were convicted for the offences u/s 8(c) r/w 22(b)(ii)(C) and 29(1) of the NDPS Act and in respect of the conviction u/s 8(c) r/w 22(b)(ii)(C) of the NDPS Act, the petitioners were sentenced to undergo rigorous imprisonment for a period of 20 years each and were ordered to pay a fine of Rs.2,00,000/- each, in default of payment of the fine amount, to undergo rigorous imprisonment for a further period of one year each and in respect of the conviction u/s 29(1) of the NDPS Act as well, the petitioners were sentenced to undergo rigorous imprisonment for a period of 20 years each and were ordered to pay a fine of Rs.2,00,000/- each, in default of payment of the fine amount, to undergo rigorous imprisonment for a further period of one year each, vide order dated 08.08.2023 made in C.C.No.99 of 2021 by the Special Court under EC/NDPS Act, Coimbatore. Aggrieved by the same, the petitioners have filed the above appeal along with this petition seeking suspension of sentence. Page No.2 of 8
3. Learned counsel appearing for the petitioners submitted that the petitioners are innocent and they have not committed any offence as alleged by the prosecution. Further, 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 petitioners are under incarceration for about three years and now they are confined in Central Prison, Coimbatore. Accordingly, he prays for suspension of sentence.
4. Learned Additional Public Prosecutor appearing for the respondent submitted that the total contraband i.e., Ganja seized from the petitioners weighs 44 Kgs, which is a commercial quantity as envisaged u/s.37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the petitioners may indulge in such offences if they comes out. Hence, she vehemently opposed to grant of suspension of sentence.
5. Heard the learned counsel on both side and perused the material documents placed on record.
Page No.3 of 8
6. 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. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half 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."
7. Having regard to the fact that there are arguable points involved in the Page No.4 of 8
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 for about three years, applying the decision of the Hon'ble Supreme Court, I am of the considered opinion that the petitioners are entitled for the relief of suspension of sentence.
8. Accordingly, the substantive sentence of imprisonment alone is suspended and the petitioners are directed to be enlarged on bail, on condition that the petitioners shall execute a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) each, with two sureties each for a like sum to the satisfaction of the Special Court under EC/NDPS Act, Coimbatore and on further condition that the petitioners shall appear before the respondent police on every Monday at 10.30 a.m., pending appeal and on further condition that, the petitioners shall pay the entire fine amount as ordered by the trial court within a period of two weeks from the date of receipt of a copy of this order.
9. Further, it is made clear that, if the petitioners indulge 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 Page No.5 of 8
10. This criminal miscellaneous petition is ordered accordingly. Post the main appeal as per seriatum.
25.07.2024 skt Note to office: Issue order copy on 30.07.2024. To
1. The Special Court under EC/NDPS Act, Coimbatore.
2. The Deputy Superintendent of Police, NIBCID, Coimbatore.
3. The Central Prison, Coimbatore.
4. The Public Prosecutor, High Court of Madras.
Page No.6 of 8
M.DHANDAPANI , J.
skt in Crl.A.No.1132 of 2023 Page No.7 of 8
25.07.2024 Page No.8 of 8