(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The present application is filed seeking suspension of sentence, under section 389 of Criminal Procedure Code in NDPS Case No.10/2003, Surat decided by the learned Special Judge on 30.03.2010. The appeal filed against the said conviction is already on board in cause list for final hearing at Sr. No.119. The prayer in this application reads as under, "It is therefore most humbly and respectfully prayed that during the pendency of this petition the sentence of the petitioner be suspended for which the petitioner pray and shall ever pray."
(emphasis supplied)
2. Heard, learned Advocate for the petitioner Mr. J. S. Sodhi with learned Advocate Mr. J. M. Chauhan for the petitioner - original accused - convicted in the aforesaid NDPS Case. Learned Advocate at the outset submitted that the present petitioner is in jail since 17.01.2003.
Learned Advocate submitted that, by now the convict has undergone nine years and six months imprisonment. The learned Advocate for the petitioner submitted that in light of the judgment and order of the Hon'ble the Apex Court in the matter of Mansingh V/s. Union of India reported in 2006(1) SCC (Cri.) 279, the petitioner convict is required to be released on bail by suspending the sentence. Learned Advocate for the petitioner invited the attention of this Court to the judgment which reads as under, "1. Leave granted.
2. The appellant has been held guilty of the offense punishable under Sections 8/18 and 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and directed to undergo rigorous imprisonment for 10 years with a fine of Rs. 1 lakh on each count.
3. The appellant has been in jail since 1-3-1997 and has already undergone more than seven years of imprisonment. It is stated by the learned counsel for the appellant that there is no likelihood of the appeal being heard in the near future. Reliance is placed on the decision of this Court in Dadu v. State of Maharashtra. The learned counsel for the appellant states that the appellant is prepared to deposit the amount of fine.
4. The appeal is allowed. It is directed that on the appellant depositing the amount of fine, the execution of the sentence of imprisonment shall remain suspended during the hearing of the appeal by the High Court and the appellant shall be released on bail to the satisfaction of the trial court for appearance consistently with the judgment of the High Court."
3. The learned Counsel was fair enough to respond to the observations made by this Court that, 'in light of the fact that the present petitioner is in jail for more than nine years and six months, his case stands on a better footing,' by saying that it will not be factually correct because in the case before the Hon'ble the Apex Court, the person guilty was awarded RI for ten years with a fine of Rs 1 lakh on each count whereas in the case on hand the petitioner is awarded RI of twenty years with fine and therefore, it is not factually correct to say that the petitioner's case stands on a better footing.
4. The learned Advocate submitted that it is true in the case of Mansingh (supra) what weighed with the Hon'ble the Apex Court was that out of ten years, the appellant (before the Hon'ble the Apex Court) had already undergone more than seven years.
But then that is not the case here. As the facts of the present case stands the applicant has not undergone even 50% of the sentence imposed. In the case before the Hon'ble the Apex Court, more than 70% of the sentence was over. In the present case, the sentence imposed is twenty years and as the petitioner has undergone only nine years and six months, it does not make even 50%.
5. Learned Advocate for the petitioner then invited attention of this Court to various other aspects of the case. But then this Court is of the opinion that the same are required to be considered at the time of final hearing of the appeal.
The submissions were that in the present case though the incident was of January, 2003, the charge was framed in the year 2006 and the conviction was recorded on 30.03.2010 only. In the memo of the petition, it is mentioned in paragraph 9 that:
"The Maalkhana Register and entries not produced nor filed with the charge sheet filed in 2003. False plea of destroying in floods in 2005 taken on record of DDR entry of such loss either was produced. Hence the Reliance on FSL report was also wrongly done by the trial Court." (emphasis supplied)
6. This Court is justified in taking judicial note of the fact that there were heavy floods in Surat in the year 2005. In those worst days the Court record was damaged including the record of the other office. In such situation to brand that plea as a 'false plea' is misplaced.
7. The learned Advocate for the petitioner next submitted that in the present case though the conviction is recorded under section 22, the petitioner was not charged for offence under section 22. Besides the learned Advocate for the petitioner also submitted that FIR in the case is not proved in the Court as it was not exhibited and was not put to the convict under section 313 and hence the same cannot be relied upon against the convict. Even at the cost of repetition it is required to be reiterated that all these contentions/ submissions are to be considered in 'final hearing' as appeal is already listed and is on board.
8. The learned Advocate for the petitioner took all the trouble to invite the attention of the Court to various provisions including the definition clause. The learned Advocate for the petitioner invited attention of the court to following definitions 2(xi) - manufactured drug, 2(xvi) - opium derivative and 2(xxiii) - psychotropic substance. Learned Advocate for the petitioner strenuously tried to convince this Court that the Act deals with 'two' different things, one 'narcotic drugs' and another 'psychotropic substance'. The learned Advocate for the petitioner also tried to convince the court that what was found from the present petitioner was 'heroine' as is mentioned in the FSL report which is produced at Exh.374. There, it is mentioned that it was dicetyl morphine (heroine) what was found in the substance recovered from the petitioner. That being so, it is a case of 'narcotic drug', i.e. 2(xiv) and it is under sub-clause (d) of (16) of section 2.
9. The learned Advocate for the petitioner also then invited attention of this Court to Exh.78 i.e. the ' charge' framed by the learned Special Judge appointed under NDPS Act on 29.06.2006. But then the learned advocate had to concede that the 'charge' is framed for the offences under sections 8(C), 22, 29 and 27(A). But then the learned advocate submitted that the 'charge' is defective inasmuch as what was found in the substance recovered from the petitioner was 'dicetyl morphine (heroine)' and not 'psychotropic substance'.
10. The learned Advocate for the petitioner then invited attention of the Court to the fact that there is non-compliance of subsection (2) of section 42 of NDPS Act. While inviting the attention of the court to sub-section (2) of section 42, the learned Advocate submitted that though sub-section (2) of section 42 provides for an information which is taken down in writing by an officer to be forwarded within 72 hours to the immediate official superior of such officer, is to be read and construed to mean that, 'the same must have been received by the immediate official superior'. He submitted that he is making this submission in view of the judgment of the Hon'ble the Apex Court in the case of State of Rajasthan V/s. Babu Lal reported in 2010 Cr.L.R.(SC) 90. The judgment reads as under, "Challenge in this appeal is to the judgment of acquittal passed by a learned Single Judge of the Rajasthan High Court, Jodhpur Bench. The respondent was convicted for offence punishable under Section 8/21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). The respondent was found in possession of a huge quantity of Brown Sugar and the Trial Court held that all the requisite procedure was followed and, therefore, according to the Trial Court, the prosecution version was established. The High Court found that there was non-compliance with the requirement of Section 42(2) of the Act.
Various factual aspects have been highlighted by the High Court to come to this conclusion.
2. Learned counsel for the State submitted that some minor variations, if any, in not following the procedure would not render the conviction bad. The learned counsel for the respondent on the other hand supported the judgment of the High Court.
3. We find that the High Court after referring to the various factual aspects came to the conclusion that provisions of Section 42(2) were not complied with. The documents required to prove the receipt of oral information were not brought on record. That being so, we are not inclined to interfere with the judgment of the High Court. The appeal fails and it is dismissed accordingly."
(emphasis supplied)
11. This court is of the opinion that the observations of the Hon'ble the Apex Court are required to be read very closely and on such close reading it becomes clear that the observations "the documents require to prove receipt and oral information were not brought on record..." were made in peculiar facts of the case. In the case on hand, the facts are different. In any case, all these contentions and arguments will be considered by this Court at the time of final hearing of the appeal, which is already on board of final hearing.
12. Last but not the least, the learned Advocate for the petitioner also submitted that as per the decision of the Hon'ble the Apex Court in the case of E. Micheal Raj reported in (2008) 2 SCC (Cri.) 558, what was required to be considered by the Learned Judge was 'the actual quantity of the offending drug'. In this regard, learned Advocate for the petitioner submitted that it is not the case of the prosecution that what was recovered was 100% dicetyl morphine (heroine) and that being so, the conviction of the present petitioner for the 'commercial quantity' cannot survive.
13. As stated hereinabove, this court is of the opinion that all these aspects will be considered when the appeal is taken up for final hearing. As stated herein above, the appeal is already listed at Sr.No.119 of the cause list and therefore, it cannot be said that ' the appeal is not likely to be heard in near future'. This is mentioned because this Court is of the opinion that this was the most important factor which weighed with the Hon'ble the Apex Court in the case of Mansingh (supra).
14. The learned Advocate for the petitioner then invited attention of this Court to Exh.101 dated 26.07.2006, whereby objection was taken on filing of 46 documents. Those objections were dealt by the learned Judge in order dated 27.07.2006. Learned Counsel candidly accepted that the said order was not challenged by the petitioner.
15. The learned Counsel for the petitioner invited the attention of this Court to a decision of the Hon'ble the Apex Court in the matter of Noor Aga V/s. State of Punjab & Anr. reported in 2008 Cr.L.R. (SC) 655 and invited the attention of the Court to head note - (D) and submitted that all procedural aspects which were required to be followed by the prosecuting agency were not followed and in absence of compliance of the required procedure, the conviction stands vitiated.
16. Finally the learned Advocate for the petitioner relied upon a decision of the Hon'ble the Apex Court in the matter of Harjit Singh V/s. State of Punjab reported in 2011(1) Drugs Cases (Narcotics) 245 and submitted that the decision of the Hon'ble the Apex Court in the case of E. Micheal Raj(supra) is considered by the Hon'ble the Apex Court and therefore, this Court should hold that conviction of the petitioner for 'commercial quantity' is contrary to the decision of the Hon'ble the Apex Court.
17. The learned Advocate for the petitioner taking stock of his submissions submitted that primarily he relies upon the decision of the Hon'ble the Apex Court in the matter of Mansingh (supra) and all these points are brought to the notice of this Court to apprise the Court that in view of these contentions there are all the chances of petitioner succeeding in appeal and therefore, keeping the same in mind, prayer made in this application deserves to be granted.
18. This Court cannot forget and brush aside the fact that the petitioner was found in possession of 24 kgs. crude heroine (Brown Sugar) valuing Rs.24 crores at the relevant time i.e. in the year 2003. This Court need not mention elaborately, the 'drastic effects' of such drugs on the society, more particularly on the 'younger generation'. This Court need not narrate the details of seriousness with which such offences are dealt with all over the world. This Court is not able to restrain itself referring to the method in which this substance was concealed in Maruti Zen Car and Maruti Fronti Car, i.e in the mudguard portion and the seats by preparing secret cavities for the purpose. The substance was found in 27 bags weighing 24 kgs. This is only a tip of the ice-berg and therefore, this Court is of the opinion that the benefit of the decision of the Hon'ble the Apex Court in the matter of Mansingh (supra), cannot be extended to the present petitioner for two reasons, viz., (1) the appeal is already listed on board and therefore, it cannot be said that it is not likely to be heard in near further, and (2) out of 20 years RI imposed on this petitioner, only nine years and six months he has undergone.
19. In view of the above, there is no substance in the application and hence the same is rejected.
(RAVI R. TRIPATHI, J.) (PARESH UPADHYAY, J.) Sunil W. Wagh Top