2020 (11) TMI 74 - HC - Indian Laws

Smuggling - Heroin - fulcrum of the argument of the learned counsel for the appellant is that the prosecution was unable to establish beyond reasonable doubt that the appellant was in conscious possession of the contraband - whether the suspension of sentence sought by the appellant is permissible within the stringent parameters laid down under Section 37(1)(b) of the NDPS Act? HELD THAT - It is beyond a doubt that by a reading of the provision the parameters laid down are with respect to grant of bail, but by judicial pronouncements they have been made applicable to cases of suspension of sentence under the NDPS Act also - It is evident that the broad principles that the Court needs to apply and satisfy itself while considering an application for grant of suspension of sentence is that the appellant is not guilty of the offence and there are reasonable grounds to arrive at such a belief as also that he is not likely to commit the offence once the sentence is suspended. There are force in the contention of the learned counsel for the appellant that the charge for the offence punishable under Section 29 of the NDPS Act pertaining to criminal conspiracy to possess the contraband substance or to deal with it, was held to be proved only against the co-accused Mandeep Kaur and not against the appellant. The Trial Court has observed that there was no independent corroborative evidence led by the prosecution to substantiate the said charge. It has also come in evidence that the appellant was only a driver of the main accused Balwinder and had been hired by the latter a few days prior to the alleged incident. During the course of the argument learned counsel for the appellant had repeatedly pointed out that Balwinder is absconding for the last several years and his status as reflected is of a proclaimed offender. There was no rebuttal to this by the Respondent s counsel. The additional factor in the present case is that the appellant had subsequently retracted the statement and therefore as per law a retracted statement, even though retraction is not proved, is a weak piece of evidence to connect the accused to the alleged offence. There are force in the contention that being a driver the appellant was prima facie not in conscious possession of the contraband and therefore there exists a reasonable ground to conclude that he may not be guilty of the alleged offence. In view of the fact that the appellant has undergone major part of the sentence and the fact that his wife is suffering from multiple medical ailments, with nobody to look after her and the four minor children, the present application deserves to be allowed - sentence awarded to the appellant shall remain suspended during the pendency of the appeal. Appellant was directed to be released granting interim suspension of the sentence by this Court vide order dated 22.06.2020 for a period of 45 days and the interim suspension was extended up to 31.10.2020. Application disposed off.

Issues Involved:
1. Suspension of sentence under Section 389 Cr.PC read with Section 482 Cr.PC.
2. Applicability of Section 37(1)(b) of the NDPS Act for suspension of sentence.
3. Consideration of reasonable grounds for believing the appellant is not guilty.
4. Evaluation of evidence and statements under Section 67 of the NDPS Act.
5. Examination of the appellant’s role and knowledge regarding the contraband.
6. Impact of the appellant's conduct and circumstances on the suspension of sentence.

Detailed Analysis:

1. Suspension of Sentence:
The appellant filed an application under Section 389 Cr.PC read with Section 482 Cr.PC for suspension of sentence during the pendency of the appeal. The appellant was found guilty under Section 21(c) of the NDPS Act and sentenced to 15 years RI and a fine of ?1,50,000/-. The sentence was to run concurrently with another sentence of 10 years and a fine of ?1,00,000/- under Section 29 of the NDPS Act.

2. Applicability of Section 37(1)(b) of the NDPS Act:
The court examined whether the suspension of sentence is permissible within the stringent parameters laid down under Section 37(1)(b) of the NDPS Act, which imposes conditions for granting bail or suspension of sentence. The court noted that judicial pronouncements have made these parameters applicable to cases of suspension of sentence under the NDPS Act.

3. Reasonable Grounds for Belief:
The court emphasized that it must be satisfied that there are reasonable grounds for believing that the appellant is not guilty of the offence and that he is not likely to commit any offence while on bail. The term "reasonable grounds" means something more than prima facie grounds and connotes substantial probable cause for believing that the accused is not guilty.

4. Evaluation of Evidence and Statements:
The appellant's statement under Section 67 of the NDPS Act was recorded, wherein he stated that he was carrying the contraband at the instance of co-accused Balwinder Singh. The appellant's counsel argued that the appellant, being a driver, was not aware of the contraband in the vehicle. The court noted that the trial court acquitted the appellant under Section 29 of the NDPS Act, indicating no criminal conspiracy involvement.

5. Appellant’s Role and Knowledge:
The court found force in the argument that the appellant was only a driver hired a few days before the incident and was not in conscious possession of the contraband. The appellant's retraction of his statement further weakened the prosecution's case. The court also noted that the main accused, Balwinder Singh, was absconding and declared a proclaimed offender.

6. Conduct and Circumstances:
The court considered the appellant's satisfactory jail conduct and the fact that he had already undergone 13 years and 3 months of his 15-year sentence. Additionally, the appellant's wife was suffering from multiple medical ailments, and there was no one to look after her and their four minor children. These factors contributed to the court's decision to suspend the sentence.

Conclusion:
The court allowed the application for suspension of sentence, noting that the appellant had undergone a major part of the sentence and considering the humanitarian aspects of his family situation. The sentence was suspended on the same terms and conditions as previously imposed, and the appellant was not required to surrender. The court clarified that its views were prima facie and would not influence the final decision on the appeal's merits.

← Previous Next →