Avtar Singh vs State of Haryana

S.S. Saron, J.—The applicant/appellant who has been convicted for the offence u/s 15 of the NDPS Act and sentenced to imprisonment for 10 years; besides, to pay a fine of Rs. 1 lac and in default of payment of fine, to imprisonment for 2 years seeks suspension of sentence of imprisonment during the pendency of the appeal.

The recovery of fine was stayed at the time of admission of the appeal on 2.8.2007. Affidavit of Sh. Joga Singh Sekhon, Superintendent District Jail, Sangrur regarding the custody period of the applicant/appellant filed in Court today is taken on record.

Heard counsel for the parties.

On 19.10.2005, a police party headed by ASI Gurmail Singh was patrolling on the metalled road in an official vehicle and was going towards villages Mandiala, Saraud, Khanpur and Moranwali. When the police party reached near the bridge of the storm water (Sem Nala) one kilometer ahead of village Saraud then from the right side of the drain embankment (patri) a person was seen sitting on two gunny bags. One of the gunny bags was tied. On seeing the police party, the said person tried to conceal himself. In the meanwhile, Darshan Singh son of Ishar Singh came from the side of village Khanpur on his scooter and he was joined in the police party. On account of the suspicion raised by the applicant/appellant, he was apprehended and thereafter search was carried out. Poppy husk was recovered from the gunny bags. Samples of 250 gms of poppy husk were taken from each of the bags from which the contraband was recovered. On weighing the gunny bags, one bag was found to contain 41 kgs of poppy husk while the other had 43 kgs. These were taken in possession.

The learned trial Court after considering the evidence and material led by the prosecution has convicted and sentenced the applicant/appellant. There are arguable points in the appeal. It is submitted that Darshan Singh who was joined as an independent witness has not been examined. Besides, the defence evidence it is submitted has not been considered. DW1 Kesar Khan, Ex. Sarpanch of the village submitted that the applicant/appellant was running a workshop of sickle welding at Ahmedgarh and was not involved in any illegal activity. The said witness deposed that on the date of which recovery is stated to have been effected the police came in the morning to the village and raided the house of the applicant/appellant. Kesar Khan DW1 further submitted that Balwant Singh Ex-Panch and three-four other persons were present when the police came and nothing was recovered from the applicant/appellant. The effect of the said evidence is to be considered at the time of final hearing. The appeal is not likely to mature for hearing in the near future. In terms of the custody certificate dated 31.3.2010 in respect of the applicant/appellant filed in Court, the applicant/appellant has undergone four years, one month and nineteen days of imprisonment till 31.3.2010. There is no other case pending against him. A Division Bench of this Court in Daler Singh v. State of Punjab 2007(1) RCR (Cr) 316, has held that where the convict is sentenced for 10 years for having in his conscious possession the commercial quantity of the contraband, he shall be entitled to bail if he has already undergone a total sentence of 4 years which must include at least 15 months after conviction. Therefore, the aforesaid guidelines as laid down by the Division Bench have been fully met. Besides, the Constitutional mandate of Article 21 of the Constitution of India guarantees a right of speedy trial by the State of persons accused of an offence. An appeal is only an extension of the trial. Therefore, the Courts are obliged to ensure the expeditious disposal of appeals or pass appropriate orders as and when they feel that the right guaranteed by Article 21 of the Constitution of India is infringed.

In view of the above, the Crl. Misc. application is allowed and the sentence of imprisonment of the applicant shall remain suspended during the pendency of the appeal subject to his furnishing personal bond and surety to the satisfaction of CJM, Sangrur.