Bikkar Singh vs State of Haryana

M.L. Koul, J.

With this Criminal Appeal No. 434SB of 1997 which stands already admitted, Criminal Misc. No. 12165 of 1997 within the purview of Sections 389/482 of the Code of Criminal Procedure for suspension of sentence and fine and for grant of bail to the petitionerappellant has been moved.

The petitionerappellant stands convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/.

The allegations against the appellantpetitioner are that on 10.8.1993 he was found carrying on his person 35 Kgs of Chura post when intercepted in the area of village Ahrawa by a police party headed by ASI Raja Ram of Police Station, Fatehabad. He was brought to the residence of Shri Ashok Kumar Yadav, Tehsildar Fatehabad in whose presence the search was effected and the Chura post was recovered from him.

On trial the Additional Sessions Judge, Hisar in his wisdom found that the appellant has committed the crime within the provisions of Section 15 of the NDPS Act and sentenced and fined him as mentioned above.

Heard learned counsel for the parties and also had a thoughtful consideration over the record on the file.

It is argued by the learned counsel for the appellant that the powers of the High Court under Section 32A are not controlled and the High Court is competent to suspend the order appealed against and to release the appellant on bail. In this regard, learned counsel for the State Mr. Dhanda urged that the sentence awarded to the appellant in the present case cannot be suspended or remitted or commuted by any authority or Court which means this Court. According to him, all the offences under the provisions of NDPS Act are of very serious nature and these are heinous crimes against the society.

It is the proclaimed fact that the offences under the NDPS Act are of very serious nature and the basic spectrum of social values of the society by these offences are affected and the Courts are bound down to deal with such criminals with an iron hand but the question remains whether the Court is powerless to grant bail or suspend the sentence for some period under the provisions of the NDPS Act.

The Delhi High Court in Hori Lal v. State, 1997(1) RCR 369 has dealt with this aspect of the case thoroughly and have come to the conclusion that Section 32A of the Act only has reference to Chapter XXXIIE of the Code of Criminal Procedure which relates to power of State/Central Government to grant suspension, remission, communication (commutation) of sentences. On the basis of this case law while going through Section 32A of the NDPS Act, it is found that this Section does not control the power of the High Court to suspend the order appealed against and to release the appellant on bail. Section 32A of the Act debars the State/Central Government to suspend or remit or commute the sentence. So far as this Court is concerned, it stands settled that in an appeal against the order of conviction pending in this court, the bar created by Section 32A of the Act does not affect the powers of this Court and the court has powers to grant bail. I am in full agreement with the view expressed in Hori Lal''s case (supra).

Learned counsel for the appellant has not carved out a different case for suspension of sentence and bail of the appellant, rather has reiterated the same grounds as raised in the appeal. This Court while dealing with the suspension of sentence and grant of bail to the accused in no manner is supposed to prejudge the merits of the case on the legalities of Section 5 of the NDPS Act as raised for adjudication in the appeal. Likewise this Court at this stage cannot discuss as to whether the Tehsildar was empowered and had the magisterial powers to approve the search of the accused by the police who was brought to him when already Chura post had been recovered from him. Although this Court is not debarred from suspending the sentence on appeal and granting bail to a convict but that power has to be exercised by this Court sparingly; that too in the particular circumstances of each case. As a rule the sentence awarded under any provision of NDPS Act is not to be suspended unless special and particular circumstances of each case are taken into consideration for such a discretion to be exercised by the Court.

In the instant case without discussing the merits of the case and having regard to the fact that only 35 Kgs of Chura post have been recovered from the appellant and also he has already undergone imprisonment for four months and remained in custody during the investigation and trial of the case for some time, therefore, it is found proper that the appellant is given some reprieve of bail and suspension of sentence for a period of three months to look after his family affairs. As such the sentence of the appellant is suspended for a period of three months provided he files bail bonds in the amount of Rs. 50,000/ with one surety and personal bond in the like amount to the satisfaction of Chief Judicial Magistrate, Hisar. However, his passport, if any, shall be impounded by the Superintendent of Police and in case he does not possess any passport the papers for grant of passport be not processed by the authorities if he applies or has already applied for that. The appellant shall surrender soon after the bail period is over without seeking extension of his bail on any ground.