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TMI Blog2020 (11) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consciou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and the net weight was 20.022 kg. 3. Statement of the appellant under Section 67 of the NDPS Act was recorded wherein the appellant is alleged to have stated that he was carrying the said contraband at the instance of co-accused Dr. Balwinder Singh, who had employed the appellant as a driver for his Maruti Wagon-R Car, 8/9 days ago. 4. As per the narrative, on 19th March, 2007 at about 11:00 AM co-accused Balwinder Singh had asked the appellant to bring the Wagon-R at Gurudwara Manji Sahib, Ludhiana and accordingly the appellant started from Delhi at about 12:00 noon and reached the Gurudwara at about 6:00 PM, where Balwinder Singh was already waiting for him in his Bolero, along with a lady, who was introduced as Mandeep Kaur. Balwinder Singh instructed the appellant to take Mandeep Kaur in the said Bolero up to GT Karnal By-Pass where the said vehicle was to be taken over by Balwinder. 5. The appellant was subsequently apprehended and formally arrested by the DRI officers. After completion of the investigation, DRI officers filed complaint before the Trial Court for prosecution of the appellant under Sections 21 and 29 of NDPS Act. Prosecution examined 22 witnesses and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 (16) SCC 417 in this regard. 9. The 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. The appellant was only a driver by profession engaged few days prior to the alleged incident by Balwinder. There is no evidence to connect the appellant with the crime and the prosecution story as presented cannot be believed. No evidence has emerged to infer any nexus between the appellant and the co-accused. Learned counsel relies on a judgment of the Co-ordinate Bench of this Court in Veerpal vs. NCB deciding Bail Appln. No.1272/2020 on 06.08.2020. She submits that while the said case relates to grant of bail but the Court has considered the twin conditions required by the Court to be considered under Section 37 of the NDPS Act and holding prima facie that the case was not established against the petitioner therein released the petitioner on bail. 10. Mr. Satish Aggarwala, learned counsel for the respondent has vehemently opposed the suspension of sentence. He submits that the present case relates to recovery and seizure of 20.022 kg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail. 13. 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution 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. 15. I also find force in the submissions made by the learned counsel for the appellant, towards the end of her arguments, that the trial court has based its decision on the disclosure statement of the appellant, allegedly recorded by PW-5 Shri Punjab Singh who had stated that he had recorded the statement of one Gurdev Singh in Punjabi language as that person was not able to write whereas he used to communicate in Punjabi language. It was argued and in my view rightly so, that a disclosure statement cannot be used against the appellant. In the case of Mahendra Kumar vs. State reported as 2010 (4) JCC 2648, it was held that as per the mandate of Section 27 of the Evidence Act only that part of the disclosure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 days and the interim suspension was extended up to 31.10.2020. In view of the above order granting regular suspension to the appellant, he need not surrender on 31.10.2020. During the hearing, counsel for the appellant had stated that the appellant had furnished a personal bond in terms of the order passed by this Court on 22.06.2020 and that he has not misused the liberty granted. There was no rebuttal by the counsel for the Respondent to this submission. The sentence is accordingly suspended on the same terms and conditions as imposed vide order dated 22.06.2020. 20. The application is disposed of accordingly. 21. Needless to state that the aforesaid view expressed by the court is only a prima facie view for disposing of the present application and the same shall not have any bearing on the final conclusion that is required to be arrived at during the hearing of the appeal on merits. 22. Copy of the order shall be forwarded to the Jail Superintendent for information and necessary action. Crl. M.B. No. 2086/2019 (for suspension of sentence) In view of the order passed above, no order is required to be passed in the present application. Date of 13.01.2021 stands c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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