Mayanglambam Bir Singh vs State Of Manipur

[1] This petition has been filed by the petitioner under Section 389 Cr.P.C. seeking to suspend the impugned judgment dated 26.11.2018 and sentence dated 30.11.2018 imposed on the petitioner in Sessions Trial Case No.69 of 2018 on the file of the learned Sessions Judge, NDPS (FTC), Manipur and to release him on bail pending criminal appeal.

[2] By the judgment dated 26.11.2018 in Sessions Trial Case No.69 of 2018, the learned Sessions Judge, convicted the petitioner/accused for the offence under Section 21(c) of the NDPS Act, 1985. After giving conviction judgment, the learned Sessions Judge, directed to list the matter on 30.11.2018 for sentence hearing and the petitioner was sent to jail. On 30.11.2018, the petitioner/accused was produced before the learned Sessions Judge and heard the learned counsel for the parties, particularly, the petitioner and his counsel qua sentence to be awarded to the petitioner.

[3] Upon consideration of the rival submissions and upon perusal of the relevant Section under which the petitioner was convicted, the learned Sessions Judge, sentenced the petitioner to undergo 10 years rigorous imprisonment and to pay fine of Rs.1 lakh within a period of 12 months from the date of sentencing, in default, to undergo another period of one year imprisonment. The learned Sessions Judge has also ordered that the period of detention undergone prior to the conviction by the petitioner shall be set off against the sentence of imprisonment within the ambit of Section 428 of Cr.P.C.

[4] Aggrieved by the conviction and sentence imposed on the petitioner, the petitioner has filed jail appeal being Criminal Jail Appeal No.1 of 2019 before this Court. Along with the appeal, the petitioner has filed petition seeking to suspend the sentence stating that he is aged 62 years and he is firmly rooted in the society with his family members living very peacefully and also the bread earner of his family. It is also stated that during the period of about 16 years he never misused the liberty granted to him and no adverse report is found against him neither he was involved in any criminal activities except the instant case where he has been falsely implicated.

[5] The learned counsel for the petitioner submitted that there are lot of infirmities in the impugned judgment and that the petitioner has got good case on merits in succeeding the appeal. The learned counsel for the petitioner urged that detention of the petitioner during pendency of the appeal is a severe punishment to all his family members and prays for suspension of sentence pending appeal.

[6] The learned counsel then submitted that the health condition of the petitioner is deteriorating and he is presently in a very serious condition and he needs urgent medical treatment outside the jail.

[7] The learned counsel for the petitioner then submitted that the criminal appeal would not be taken up for hearing in the near future and therefore, the petitioner is entitled to suspension of sentence pending appeal and he undertakes to abide by the conditions imposed by this Court.

[8] Per contra, the learned counsel for the State submitted that upon analyzing the oral and documentary evidence and upon finding the involvement of the petitioner into the crime, the learned Special Judge convicted the petitioner under Section 21(c) of the Act and imposed the sentence to undergo 10 years rigorous imprisonment and to pay fine of Rs.1 lakh. The learned counsel would submit that the petitioner is not entitled to the benefit of Section 389 Cr.P.C. and therefore, he is not entitled to get the sentence suspended.

[9] The learned counsel for the State opposed the petition contending that It is not a fit case to release the petitioner on bail on routine manner just because he has filed the appeal against the judgment and sentence and prayed for dismissal of the petition.

[10] This Court considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.

[11] The petitioner was convicted under Section 21(c) of the NDPS Act, 1985 and sentenced to undergo rigorous imprisonment of 10 years and to pay a fine of Rs.1 lakh, in default, undergo one year imprisonment. The judgment of the learned Sessions Judge is dated 26.11.2018 and sentence was imposed on 30.11.2018 and from 30.11.2018 onwards, the petitioner was in jail.

[12] As could be seen from the appeal grounds, the petitioner challenged the judgment of the learned Sessions Judge on various grounds. One of the grounds raised is that the learned Sessions Judge lost sight to the non-compliance of certain mandatory provision of the NDPS Act.

[13] At this juncture, the learned counsel for the petitioner submitted that the petitioner needs urgent medical treatment from outside the jail, as his health condition is very worst. In support, he has referred to the order of this Court dated 30.12.2020, wherein this Court directed the Jail Superintendent to take up necessary arrangement for treatment of the petitioner to any suitable hospital forthwith and submit a report to this Court.

[14] Pursuant to the order of this Court dated 30.12.2020, the Senior Medical Officer, Manipur Central Jail, Sajiwa examined the petitioner and has given his report. In his report, the Senior Medical Officer stated that the petitioner has been diagnosed as a case of acute intraparenchymal hematoma in left thalamus with perilesional edema and mass effect on 17.12.2020 at Jawaharlal Nehru Institute of Medical Sciences, Porompat, Imphal, Manipur. The Doctor further opined that presently, the petitioner is having weakness of right side of his body and having difficulty in walking and using bathroom. There is no significant improvement after discharge from hospital inspite of conservative management and without helper, he cannot do his activities. The Doctor further opined that considering his condition, it will be better for him if he receives treatment in a well established hospital outside the jail.

[15] Thus, as per the medical report submitted by the Senior Medical Officer of Manipur Central Jail, the health condition of the petitioner is very bad and he needs better treatment in a well established hospital outside the jail. There is no contra medical records produced by the respondent State that the petitioner is well. When the Doctor, who examined the petitioner in jail himself suggested that the petitioner needs a better treatment outside the jail, it would be appropriate for this Court to release the petitioner by suspending the sentence enabling him to take better treatment outside the jail for surviving.

[16] In Bhagwan Rama Shinde Gosai and others v. State of Gujarat, reported in (1994) 4 SCC 421 and Dadu alias Tulsidas v. State of Maharashtra, reported in (2000) 8 SCC 437, the Hon'ble Supreme Court held that when a convicted person is sentenced to a fixed period and when the convict files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances.

[17] In Bhagwan Rama Shinde Gosai, supra, the Hon'ble Supreme Court held:

"When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence, so as to make the appeal right, meaningful and effective. Of course, appellate courts can impose similar conditions when bail is granted."

[18] In Dadu alias Tulsidar, supra, the Hon'ble Apex Court held:

"25. Judged from any angle, the section insofar as it completely debars the appellate courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32-A insofar as it ousts the jurisdiction of the court to suspend the sentence awarded to a convict under the Act is unconstitutional. We are, therefore, of the opinion that the Allahabad High Court in Ram Charan case (1991) 9 LCD 160 (All) has correctly interpreted the law relating to the constitutional validity of the section and the judgment of the Gujarat High Court in Ishwar Singh M. Rajput case (1990) 2 Guj LR 1365 cannot be held to be good law."

[19] It is to be mentioned that the appeal is of the year 2019 and due to practical reasons the appeal cannot be taken up in the near future and disposed of expeditiously. As stated supra, the petitioner pleaded that he is suffering acute intraparenchymal hematoma in left thalamus with perilesional edema and mass effect. In support, the petitioner has also filed the medical reports and the same have not been rebutted by the respondent State.

[20] Considering the health condition of the petitioner, without expressing anything on the merits of the appeal, this Court finds that this is a fit case to suspend the sentence imposed on the petitioner pending appeal, however, subject to stringent conditions.

[21] Accordingly, the sentence imposed on the petitioner in Special Trial Case No.69 of 2018 dated 30.11.2018 on the file of the learned Special Judge, NDPS (FCT), Manipur alone is suspended, subject to the compliance of the following conditions by the petitioner:

(a) The petitioner is directed to be released on bail on his furnishing a personal bond for Rs. 50,000/- (Rupees Fifty Thousand) with two sureties in the like sum to the satisfaction of the learned Special Judge, NDPS (FTC), Manipur.

(b) The petitioner, on his being enlarged on bail, is directed to report before the learned Special Judge, NDPS (FTC), Manipur on all Tuesdays at 10.00 A.M. till the disposal of the appeal pending before this Court.

(c) The petitioner shall also report before the Border Affairs Police Station on the first Monday of every month at 10.00 A.M.

(d) The petitioner shall not indulge in any criminal activities during the period of suspension of sentence.

(e) The Border Affairs Police is directed to monitor the petitioner and if they find the petitioner involved in any criminal activities, the Border Affairs Police is at liberty to bring it to the notice of this Court through the Public Prosecutor.

(f) The petitioner shall not leave the Jurisdiction of the Court.

(g) In case of violation of any condition, the prosecution may ask for cancellation of bail.

(h) It is made clear that this Court has not delved into the merits of the appeal.