Thounaojam Lemba Singh vs Intelligence Officer

This petition has been filed by the petitioner under Section 389 Cr.P.C. seeking to suspend impugned judgment dated 31.12.2018 and sentence dated

5.1.2019 imposed on the petitioner in Sessions Trial Case No.60 of 2018 on the file of the learned Sessions Judge, NDPS (FTC), Manipur and to

release him on bail pending criminal appeal.

By the judgment dated 31.12.2018 in Sessions Trial Case No.60 of 2018, the learned Sessions Judge, convicted the petitioner/accused for the

offence under Section 17(c) of the NDPS Act, 1985. After giving conviction judgment, the learned Sessions Judge, directed to list the matter on

5.1.2019 for sentence hearing and the petitioner was sent to jail. On 5.1.2019, the petitioner/accused was produced before the learned Sessions Judge,

and heard the learned counsel for the parties, particularly, the petitioner and his counsel in respect of sentence to be awarded to the petitioner.

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 one year, 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.

Aggrieved by the conviction and sentence imposed on the petitioner, the petitioner has filed Criminal Appeal No.10 of 2019 before this Court. Along

with the appeal, the petitioner has filed petition seeking to suspend the sentence stating that he is the sole earning member of his family consisting of

his wife, four sons and one daughter and without the petitioner, his family members are in a deteriorating conditions. It is also stated that the petitioner

is suffering from various ailments including high blood pressure, diabetics and he has also suffered BP stroke in the year 2016 and any anxiety can

endanger his life.

The learned counsel for the petitioner submitted that there are lot of infirmities in the impugned judgment and the petitioner has got good case on

merits in succeeding the appeal. He would submit that the petitioner has got family consisting of his wife, four sons and one daughter and he has to

look after the family. The learned counsel further submitted that the petitioner was in custody during trial and in fact, while imposing sentence, he was

brought from Manipur Central Jail, Sajiwa.

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

appellant is entitled to suspension of sentence pending appeal and that the appellant undertakes to abide by the conditions imposed by this Court. He

would submit that in similar circumstances, this Court suspended the sentence and released the appellant on bail. In support, the learned counsel has

produced the order dated 31.5.2019 passed in Criminal Appeal No.11 of 2018 (Mangte Indramani alias Soso Koireng v. State of Manipur).

According to the learned counsel for the petitioner, the petitioner was on ball during trial and he had fully co-operated in the trial by putting his

personal appearance in almost all the hearing dates fixed by the learned Sessions Judge and he never violated any terms and conditions of his releasing

on bail during the whole proceedings of the trial. It is the say of the petitioner that he is the bread winner of the family and he has to look after his wife

and children.

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.

Per contra, the learned counsel for the State submitted that the learned Sessions Judge arrived at a Finding that there was seizure of 5 kgs of

Opium from inside the Maruthi van driven by the petitioner with supportive material and as such he has committed the offence punishable under

Section 17(c) of the NDPS Act, 1985 and convicted the petitioner 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.

The learned counsel for the State opposed the petition contending that in view of the gravity of the offence committed by the petitioner, he cannot

be released on bail by suspending the sentence imposed by the learned Sessions Judge and prayed for dismissal of the petition.

I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.

The petitioner was convicted under Section 17(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 31.12.2018 and sentence was

imposed on 05.01.2019 and from 05.01.2019 onwards, the petitioner was in jail.

In the instant case, the petitioner challenged the judgment of the learned Sessions Judge on various grounds as could be seen from the grounds of

appeal. The petitioner has raised a ground that the learned Sessions Judge lost sight to the non-compliance of the mandatory provision of the NDPS

Act, more particularly, Section 50 of the Act. The petitioner has also raised a ground that it is mandatory on the part of the prosecution agency to

prepare the seizure list in the presence of two independent witnesses, but in the instant case, the seizure list contain only the personnels of the seizure

team and the said fact has not been considered by the learned Single Judge. That apart, the learned Sessions Judge lost sight the evidence of P.Ws

which are contradictory to each other in respect of the contraband Opium which was allegedly concealed inside the Maruthi van.

By placing reliance upon the decisions in Bhagwan Rama Shinde Gosai and others v. State of Gujarat, reported in (1994) 4 SCC 42 1and Dadu

alias Tulsidas v. State of Maharashtra, reported in (2000) 8 SCC 437, the learned counsel for the petitioner submitted that when a convicted person is

sentenced to a fixed period and when the convict files an appeal considered by the appellate Court liberally unless there are exceptional

circumstances.

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.â€​

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.â€​

Thus, the prayer for suspension of sentence should be considered liberally unless there is any statutory restriction. Further, Section 32-A of NDPS

Act does not in any way affect the powers of the authorities to grant parole and a sentence awarded under the Act can be suspended by the appellate

Court.

According to the petitioner, the Arresting Officer has failed to comply with the provisions of Section 50 of the NDPS Act. Section 50 of the Act is

meant basically to protect an individual against the false implication by the Police. If this protection is sought to be denied by the Police, then this is one

of the reasons which can lead, and is leading, the Court in the present case, to come to a prima facie, but reasonable satisfaction that the appellant

might not have been involved in the crime alleged.

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. The petitioner pleaded that he is suffering from various ailments including high blood pressure, diabetics and any anxiety can

endanger his life. Though no medical record has been produced by the petitioner, the said fact has not been rebutted by the respondent prosecution.

Considering the facts and circumstances of the instant case and that the appeal would take substantial time to come up for final hearing, without

expressing anything on the merits of the appeal and there are arguable points involved in 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.

Accordingly, the sentence imposed on the petitioner in Special Trial Case No.60 of 2018 dated 05.1.2019 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.1 lakh (Rupees One Lakh) 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 and Fridays 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 AM.

(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 delve into the merits of the appeal.

This petition is ordered in the above terms.