(PER :
HONOURABLE MR.JUSTICE AKIL KURESHI) [1] The applicant convict seeks suspension of sentence and release on bail pending his appeal. He has been convicted for the offence punishable under section 29 read with section 8 of the Narcotics Drugs and Psychotropic Substances Act (for short the N.D.P.S. Act ) by the trial Court. He is sentenced to undergo rigorous imprisonment of twelve years and also directed to pay fine of Rs.1,00,000/-.
[2] It is not in dispute that at the time of admission of the appeal, bail application was filed, but withdrawn. Subsequently, another bail application being Criminal Misc. Application No.14682 of 2011 came to be filed for the same purpose. It was disposed of by the Division Bench by an order dated 24.01.2012 in following terms :
Considering the facts and circumstances, the appeal be listed for hearing on the week beginning on 13th February, 2012.
In view of the above, Mr.Baghel does not press the present application.
Disposed of as not pressed.
[3] Thereafter, Criminal Misc. Application No.4416 of 2012 was filed by the convict through his advocate. In such application, Division Bench on 12.06.2012 passed the following order:
Learned advocate for the applicant states that the Criminal Appeal No.2020/2010 is already listed on Board, and therefore, he requested that this application may be kept along with the main matter because, in case, the main matter is not heard, he can press this application.
[4] When this bail application was pending, the convict through jail filed fresh application being Criminal Misc. Application No.8231 of 2013 and once again prayed for being released on bail.
[5] Learned counsel Ms.Kruti M. Shah for the applicant has drawn our attention to the order dated 25.02.2011 passed in Criminal Misc. Application No.14942 of 2010 by Division Bench of this Court, in case of co-convict Rohit Kantilal Desai. Such application for bail plea came to be rejected in the following manner.
1.0 Heard learned senior advocate Mr. YS Lakhani for M/s. SG Associates for the applicant.
2.0 Present application is filed seeking Regular Bail in a matter of conviction under Sections 22(c) and 29 read with Sec. 8(c) of the NDPS Act, in Special NDPS Case No. 1 of 2003, by judgment and order dated 31st August 2010.
3.0 The learned senior advocate for the applicant requests that, taking into consideration the fact that the conviction is under the NDPS Act and if the Court is not inclined to consider the request for grant of Regular Bail, at least, a direction be issued to the Sessions Court to prepare the Paper book in a time frame, as the accused persons are in jail for over eight years by now, so as to see that the appeals can be heard at the earliest.
3.1 The request made by the learned senior advocate for the applicant is found reasonable. The same is granted. The Sessions Court is directed to prepare Paper book as early as possible, preferably by 31st March 2011.
3.2 Registry is directed to notify the matter for Final Hearing on receipt of the Paper book without any delay.
4.0 The application for Regular Bail is rejected. Rule is discharged.
[6] It appears that the said co-accused had once again filed fresh bail application being Criminal Misc. Application No.11676 of 2011 which came to be dismissed by the Division Bench by an order dated 30.08.2011, in which it was stated :
Learned counsel, Mr.Gondaliya, argued that since the applicant has already undergone more than 8 years and 10 months of imprisonment out of the sentence of imprisonment for 12 years, his application for suspension of sentence and release on bail was required to be considered. He fairly conceded that the earlier bail application of the same applicant being Criminal Misc. Application No.14942 of 2010 was rejected on 25.2.2011 with a direction to notify for final hearing the appeal of the applicant. Learned counsel, Mr.Gohil, appearing for the respondents has objected to grant of any relief in the application, in view of the fact that the State has also filed an appeal for enhancement of sentence, which appeal has been admitted and all the appeals are, now, ready for hearing and even listed today for that purpose. Under the circumstances, the application being a successive application and being devoid of any valid ground, it is rejected.
[7] The applicant, thereupon, approached the Supreme Court by filing Special Leave Petition, which came to be disposed of on the following terms.
Heard learned counsel for the petitioner.
We are not inclined to interfere with the order of the High Court. The High Court, while refusing the petitioner s prayer for suspension of sentence, observed that all the appeals including the appeal filed by the State for enhancement of sentence are ready for hearing and even listed. In that view of the matter, we request the High Court to explore the possibility of taking up the appeals for hearing as early as possible. We expect that the High Court will be able to dispose of the appeals within three months from today.
The special leave petition is dismissed with the above observations.
[8] Learned counsel for the applicant submitted that against the sentence of twelve years, the applicant has already served out the sentence of more than ten and half years including the period of set off. There is no possibility of hearing the appeal in near future. The applicant is aged about 74 years. He does not keep good health. The conviction recorded by the learned trial Judge is highly vulnerable. There is no merit in the State appeal for enhancement of the sentence.
[9] Our attention was drawn to the following judgments of the Supreme Court wherein depending upon the fact situation after long passage of time in jail when it was found that it was not possible to hear the appeal expeditiously respective convicts were enlarged on bail.
[1] In the case of M. V. Jayadevappa and another Vs. Oriental Fire & General Insurance Co. Limited and others, reported in (2004) 13 SCC 43;
[2] In the case of Bhagwan Rama Shinde Gosai and others Vs. State of Gujarat, reported in (1999) 4 SCC 421;
[3] In the case of Superintending Engineer and others Vs. B. Subba Reddy, reported in (1999) 4 SCC 423;
[4] In the case of Takht Singh and others Vs. State of M.P., reported in (2001) 10 SCC 463;
[5] In the case of Sunil Rathi Vs. State of U.P., reported in (2006) 9 SCC 603;
[6] In the case of Jagan Alias Jagan Nath Vs. State of Haryana, reported in (2004) 13 SCC 507;
[7] In the case of Madan Pal Vs. State of Haryana, reported in (2004) 13 SCC 508;
[8] In the case of Kamal Vs. State of Haryana, reported in (2004) 13 SCC 526;
[9] In the case of A. E. Premanand Vs. Escorts Finance Ltd and others, reported in (2004) 13 SCC 527;
[10] We may, however, notice that in all the above cited judgments, except in the case of Mansingh Vs. Union of India, reported in (2004) 13 SCC 42, the rest of the cases did not pertain to the offence punishable under the N.D.P.S. Act.
[11] On the other hand, learned Central Government Counsel Mr.K. T. Dave for the Narcotic Control Bureau ( N.C.B. for short) opposed the bail application submitting that this is a successive bail plea. In absence of any change in the circumstances, such fresh application would not be maintainable. He put considerable thrust on the provisions contained in the N.D.P.S. Act contending that after conviction, the rigors of section 37(1)(b)(2) of the N.D.P.S. Act would apply with greater vigor. Mere passage of time, therefore, would not be a ground to release the convict on bail, particularly, when it is found that there was sufficient evidence on record to convict the accused and when it was found that he had indulged in trade and manufacture of psychotropic substances in large quantity in the international market.
[12] In support of his contentions, learned counsel for the N.C.B. relied on the following decisions :
[1] In case of Union of India Vs. Abdul Momin, reported in (2006) 2 SCC (Cri.) 130 wherein High Court having granted bail to the convict in N.D.P.S case on the ground that there was no prospect of early hearing of the appeal.
[2] In the case of Ratan Kumar Vishwas Vs. State of Uttar Pradesh, reported (2009) 1 SCC (Cri.) 546, in which the Supreme Court was pleased to confirm the order of the High Court refusing bail to the convict for the offence under the N.D.P.S. Act.
[13] Having heard learned counsel for the parties and having perused the record of the case, it emerges that the applicant along with co-accused has been convicted for serious offence punishable under the N.D.P.S. Act. What is believed by the trial Court based on the evidence laid by the prosecution is of indulging in and dealing with and manufacturing of huge quantity, way above the commercial quantity of psychotropic substances. The allegation against the accused includes that of dealing in such substances in the international market and foreign currency. Though strongly urged before us by learned counsel for the applicant, we are unable to hold that there was prima facie no evidence to permit the learned Judge to record the finding of conviction against applicant. When the appeal is pending, we have neither examined the evidence as if hearing the appeal, nor prefer to make detailed observations on evidence on record. Suffice it to say that this is not a case where it can be held that there are reasonable grounds to believe that the applicant is not guilty of offence in question . If this be so, the limitation of section 37(1)(b)(ii) of the N.D.P.S. Act would apply. Section 37 of the N.D.P.S. Act does not distinguish between pending the trial and post conviction bail plea. In any case, a limitation or rigor provided by the legislature, while taking up bail plea of a person accused of offence punishable under the N.D.P.S. Act, if applicable before completion of the trial, would certainly continue to apply after he is found guilty by a Court of competent jurisdiction.
[14] In the case of Union of India Vs. Abdul Momin (Supra), the Supreme Court has observed as under :
4. Under these circumstances, we have examined the impugned order passed by the High Court. It appears that the High Court while granting bail to the respondent was oblivious of the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the bail has been granted merely on the ground that there was no prospect of early hearing of the appeal. We have noticed in several cases before this Court that in an offence of this nature, where a foreigner is involved, or where the offence is committed in a State adjoining the national frontiers, after grant of bail it becomes difficult to trace out the accused. Therefore, the courts should be circumspect in granting bail in cases of this nature.
5. Having perused the order of the High Court, we find that the same is in disregard of the statutory provisions. The order of the High Court granting bail to the respondent is, therefore, set aside. The appellant is directed to take all necessary steps to apprehend the respondent so that the High Court may be able to dispose of the appeal in accordance with law.
[15] Likewise, in the case of Ratan Kumar Vishwas Vs. State of Uttar Pradesh, the Supreme Court has observed as under :
18. To deal with the menace of dangerous drugs flooding the market, Parliament has provided that a person accused of offence under the Act should not be released on bail during trial unless the mandatory conditions provided under Section 37 that there are reasonable grounds for holding that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail are satisfied. So far as the first condition is concerned, apparently the accused has been found guilty and has been convicted.
19. Section 37 of the Act reads as follows :
37. Offences to be cognizable and non-bailable. - (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.
20. The High Court has dealt with the factual position in great detail to conclude that the parameters of Section 37 are not fulfilled to warrant grant of bail by suspension of sentence. We find no reason to interfere in the matter. The High Court is requested to dispose of the criminal appeal pending before it expeditiously.
[16] It is true that the applicant has almost served out the sentence pending appeal, because of protracted trial and the applicant having remained in jail as under trial prisoner for seven years. However, in peculiarity of the offence under the N.D.P.S. Act and the seriousness with which the Legislature and the Courts view such infringements, it would not be possible to release the convict on bail merely on the ground of passage of time particularly, in the facts of the present case where we can not lift the rigors of section 37 of the N.D.P.S. Act.
[17] The decision in the case of Mansingh Vs. Union of India cited by learned counsel for the applicant does not referred to section 37 of the N.D.P.S. Act. From the body of the judgment, it is not possible to ascertain whether the accused was convicted in connection with the commercial quantity of any psychotropic substances or less quantity. The conviction was under sections 15 and 18 of the N.D.P.S. Act. If the findings were, that he had dealt with and manufactured in quantity, less a commercial quantity, the rigors of section 37(1)(b)(ii) of the N.D.P.S. Act would not apply.
[18] In the result, these applications are dismissed.
(AKIL KURESHI, J.) (R.P.DHOLARIA,J.) vijay Page 9 of 9