Resham Singh vs State of Punjab

M.L. Koul, J.

Convictpetitioner (hereinafter referred to as the accused), stood convicted and sentenced for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One Lakh, and in default of payment thereof to undergo further RI for one year. The order of conviction and sentence was recorded by the trial Court i.e. Addl. Sessions Judge, Bhiwani, on 23/24.10.1996.

Briefly stated, the accused as per the prosecution story was carrying 15 kgs of poppy husk, which was recovered from the rear seat of the driver''s seat. Out of the recovered poppy husk, 100 grams was separated as sample and the remainder weighing 14 kgs 900 grams, were seized and taken into possession by the police. On trial, the accused stood convicted and sentenced on the dates mentioned above.

Appeal against the orders of conviction and sentence, was admitted on 28.1.1997 and the prayer for suspension of sentence was not pressed. Now an ancillatary Criminal Misc. petition for suspension of sentence has been moved by the petitioner on the very averments which have been raised in the appeal and it is argued by Mr. Sangha, learned counsel for the accused that the accused has already undergone about 11 months rigorous imprisonment, after his conviction and has also remained confined in the police and judicial lock up for one month while on trial. This shows that the accused has already undergone one year''s sentence and besides has earned some remissions as well.

It is argued by Mr. Dhanda, Assistant Advocate General, Haryana, that now it stands settled that any offence under the N.D.P.S. Act is a crime against the public/State and very serious in nature. The basic spectrum of social values of the society by such accused are mutilated and the courts are therefore bound to deal with such criminals with heavy hand for they are not only the enemy of the public at large but the State as well. Thus, the courts should be very firm in controlling the proceedings in such matters and should not grant bail to such accused, who are involved within the provisions of N.D.P.S. Act. In this regard he argued that the petitioner has been convicted by the learned Addl. Sessions Judge, Bhiwani, and on proper trial it was found that he was in possession of 15 Kgs of poppy husk, when apprehended by the police.

Although the argument raised by Mr. Dhanda appears to be convincing but all the more the Courts have to render justice to the accused and all along for grant of bail sometimes equity also plays a vital part. In every case the particular facts and surrounding circumstances of the case are to be taken into consideration for grant or refusal of bail.

In the case on hand, the petitioner has already undergone more than one year''s sentence and there is no likelihood that his case can be taken up for adjudication in the near future for it is a fresh appeal as compared to hundreds of such appeals which are pending for disposal for couple of years. There is no likelihood that its number for adjudication will come up soon. No doubt, the accused is a convict and that too for an offence which is against the Society but the personal liberty of the accused is paramount in the eye of law and it is to be seen that no one suffers unless the conviction and sentence recorded by the trial court is found correct by an appellate court. It is a basic principle of law that the proceedings before the trial court and the appellate court are in continuation and these come to close after the appellate court also confirms and concurs with the findings of the trial court.

This Court as an appellate court over such appeals, is not a court of law but as a court of facts as well. Section 32A of the N.D.P.S. Act regulates the grant of bail in such matters and on interpretation it is found that this Court has a power to suspend the sentence and to grant bail after the accused is convicted for an offence under any provision of the N.D.P.S. Act. In this regard, this court has many a time held that Section 32A of the Act only has reference to chapter XXXIIE of the Code of Criminal Procedure and that shows that Section 32A does not debar the High Court from granting the bail even under the N.D.P.S. Act for this Court has powers to grant bail. The impediment created by Section 32A is that it debars the State/Central Government to grant suspension, remission or commutation of sentence. So far as this court is concerned, it stands settled that in an appeal against the order of conviction and sentence under any provision of N.D.P.S. Act, the bar created by Section 32A of the Act does not affect the powers of the High Court and this Court has the powers to grant bail. In this regard I am motivated to refer to my own decision in Bikar Singh v. State of Haryana, 1997(4) RCR (Crl.) 196 : 1997(3) R.C.C. 138.

No doubt the court has enough powers to grant the bail but such powers are to be exercised sparingly and in the particular circumstances of each case having regard to the merits involved in every case.

In the instant case the petitioner has already undergone one year''s imprisonment and besides that earned some remissions as well. Also many legalities of the N.D.P.S. Act with regard to the investigation of the case are under challenge.

Having regard to all these circumstances of the case I deem it proper that the accused from whom only 15 Kgs of poppy husk has been recovered, is given bail after his sentence is suspended. Hence, his sentence is suspended subject to the condition that he shall furnish bail bonds in the amount of Rs. 50,000/ with one surety and personal recognizance bond in the like amount, to the satisfaction of the trial court/C.J.M., Bhiwani. However, the bail is granted to the petitioneraccused for a period of one year only and it cannot be extended thereafter on any ground whatsoever. The petitioner shall see that his case is fixed within this period for proper hearing after seeking the early hearing of the case under the orders of the High Court.

The recovery of fine is also suspended till further orders.