IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : NDPS ACT Judgment reserved on :11th November, 2011 Judgment delivered on: 06th February, 2012 Crl.M.B.No.193/2011 in CRL.A. 148/2010 VISHAL SHARMA Through : Mr. Yogesh K. Saxena, Adv.... Appellant versus DIRECTORATE OF REVENUE INTELLIGENCE Through : Mr. Satish Aggarwala, Adv.... Respondent With Crl.M.B.No.247/2010 in CRL.A. 190/2010 SOM NATH SHARMA Through : Mr. Sanjiv Kumar, Adv.... Appellant versus DIRECTORATE OF REVENUE INTELLIGENCE... Respondent Through : Mr. Satish Aggarwala, Adv. And Crl.M.B.No.362/2010 in CRL.A. 284/2010 PURSHOTTAM LAL Through : Mr.S.S. Das and Mr.Bhaskar Vali, Advs.... Appellant versus DIRECTORATE OF REVENUE INTELLIGENCE Through : Mr. Satish Aggarwala, Adv.... Respondent
CORAM: HON'BLE MR. JUSTICE SURESH KAIT SURESH KAIT, J. 1. Before stepping in the arena of factual matrix, it would be in place to mention here that by this common order, all the three respective bail applications preferred by the applicants/convicts are being dealt with as same were tried together and convicted and sentenced by a common judgment/order. 2. Further, besides all the three applicants/convicts, another accused Gurmeet Singh faced the trial, however, he has since been acquitted by the learned Additional Sessions Judge vide impugned judgment. 3. Learned counsels for applicants/convicts submit that vide impugned judgment dated 03.12.2009 they were held guilty and convicted. Vide order on sentence dated 14.12.2009 they were sentenced to undergo RI for ten years for offence punishable under Section 21(c) NDPS Act with fine of ` 1.00 Lac each. They were also sentenced for the offence under 29 NDPS Act with fine of ` 1.00 Lac each. Both the sentences were ordered to run concurrently and benefit of Section 428 Criminal Procedure Code was extended to them. 4. They further submitted that co-accused Gurmeet Singh who was dealing in old cars has been acquitted by learned Trial Court and the department has not challenged the same, thereby attained finality. 5. It is submitted that the applicant/convict Pursahotam Lal, was having his own business of grocery shop; applicant/convict Vishal Sharma was having chemist shop and applicant/convict Som Nath Sharma was running small milk dairy, therefore, all the appellants mentioned above were leading a very settled life and in the instant case, the department has falsely implicated them in the case. 6. As per the allegations of the department, applicants mentioned above in addition to Gurmeet Singh, purchased a Maruti Zen car bearing registration No.DL-6CB-6980 to use in the crime, however they have no connection in whatsoever manner to the car mentioned above.
7. None of the applicants/convicts mentioned above are connected or related to each other. Even no connection inter se on phone could be established. Therefore, the applicants/convicts have nothing to do with the alleged recovery affected from them. 8. Learned counsel for applicants/convict further submitted that there is no independent witness to the recovery being affected from the appellants. There is no investigation on the aspect that from where the alleged substance was procured and who was the recipient of that much substance, therefore, the applicants/convicts are likely to succeed in their respective appeals. 9. Further, it is submitted on behalf of the applicants/ convicts that all the three are well-settled having their own business/occupation at their respective places, therefore, they are not likely to commit same offence, if enlarged pending their respective appeals. 10. It has also been urged on behalf of the applicants/convicts that there is no compliance of mandatory provision of Section 42(2) and 55 NDPS Act. The compliance of same are mandatory as held by the Apex Court in State of Punjab v. Baldev Singh and State of Punjab v. Balbir Singh and other catena of judgments and on this ground alone the conviction is liable to be set aside. 11. By summing up the arguments, learned counsel for applicants / convict submit that co-accused Gurmeet Singh who was similarly placed and tried together has since been acquitted by learned Additional Sessions Judge. Therefore, on parity, the applicants/ convicts should also be at least entitled for suspension of their sentences till the disposal of appeals. 12. It is further submitted that all the convicts/applicants are in custody since 09.09.2003 and till date they have completed more than 8 ½ years. 13. On the other hand, Mr.Satish Aggarwal, learned counsel for respondent strongly opposed the grant of suspension of sentence during the pendency of appeals and relied upon following decisions:- a) UOI v. Shiv Shanker Kesari (2007) 7 SCC 798; b) NCB v. Karma Phuntsok & Ors (2005) 12 SCC 480; c) UOI v. Ram Samujh & Ors 1999 (3) CCC 22(SC); d) Bail Appn.No.4426/2006 decided on 17.04.2007 in respect of applicant/convict Vishal Sharma by this Court.
e) Pawan Mehta v. The State 2002(1) JCC 34; f) Vinod Kumar & Ors v. Shri S. K. Srivastava, IO, DRI 2006 (1) JCC (Narcotics) 1 DHC g) UOI v Gurucharan Singh 2003 (11) SCC 764 h) UOI v Abdulla 2004 (13) SCC 504. 14. Relying upon the above decisions, learned counsel for respondent submitted that the similar issues have been decided in favour of the respondent and Section 37 NDPS Act is a complete bar, therefore, the sentence of the applicants/convicts cannot be suspended. 15. In the similar situation, coordinate bench of this Court has passed order suspending his sentence, he was admitted on bail, in Sachin Arora v. DRI Criminal M.B. No.1659/2011, vide order dated 12.01.2012 wherein the petitioner had undergone sentence of imprisonment nearly 05 years and 07 months out of which he had undergone a sentence of 18 months after conviction. 16. In Sachin Arora (supra) it has been observed that incarceration of the appellant in custody is itself a ground for suspension of sentence. The applicant/convict has already undergone sentence as laid down in the guidelines. Further, there is no likelihood of the appeal being heard in near future. 17. I am conscious that in Maktool Singh v. State of Punjab, 1999 (1) CC Cases 109 (SC), Dadu @ Tulsi Dass v. State of Maharashtra 2001(1) C.C. Cases 91(SC) & Man Singh v. Union of India, 2006(2) RCR(Crl.) 73(SC), the Division Bench held as under:- We therefore feel that keeping in view the spirit of Article 21, the following principles should be adopted for the release of the prisoners(convicts on bail after placing them in different categories asunder:- (1) Where the convict is sentenced for more than ten years for having in his conscious possession commercial quantity of contraband, he shall be entitled to bail is he has already undergone a total sentence of six years, which must included at least fifteen months after conviction. (2) Where the convict is sentenced for ten years for having in his conscious possession commercial quantity of the contraband, he shall be entitled to
bail if he has already undergone a total sentence of four years, which must included at least fifteen months after conviction. (3) Where convict is sentenced for ten years for having in his conscious possession, rarely marginally more than non-commercial quantity, as classified in the table, he shall be entitled to bail if he has already undergone a total sentence of three years, which must include at least twelve months after conviction. (4) The convict who, according to the allegations, is not arrested at the spot and booked subsequently during the investigation of the case but his case is not covered by the offences punishable under Section 25,27-A and 29 of the Act, for which in any case the aforesaid clauses No.(i) to (iii) shall apply as the case may be, he shall be entitled to bail if he has already undergone a total sentence of two years, which must include at least twelve months after conviction. 18. As parameters laid down that in cases where the appellants have been awarded sentence of imprisonment for ten years for being in conscious possession of commercial quantity of contraband, he shall be entitled to bail, if he undergoes a total sentence of four years; which must include at least fifteen months after his conviction. 19. In the present cases, the applicants/convicts were taken into custody on 09.09.2003, thereafter vide impugned judgment convicted on 03.12.2009 and vide order on sentence dated 14.12.2009 they were sentenced, as mentioned above. Therefore, after conviction, they have spent more than 25 months in custody. 20. Instant appeals pertain to the year 2010 and this Court is struggling with the appeals of the year 2004. Probably, the instant appeal may take long time to be heard and adjudicated upon. Rather, as a whole, all convicts/ applicants have already undergone more than 8½ years incarceration out of total sentence of ten years. 21. Also being conscious of the fact that at this moment only the applications for suspension of sentence are being dealt with and not the appeals, therefore, it is deemed fit not to make any observations regarding Section 37 NDPS Act. Due to this fact alone, elaborate observations are being avoided. In short, it is observed that Section 37 NDPS Act is meant only for syndicates and not the individual persons, whose are either trapped due to either innocence or their poverty under which circumstances they led
their life. The aspect of origination and destination of the contraband invariably not investigated and not even carried to a logical end. 22. In view of above discussion, under the facts and circumstances of the case, I deem it fit to suspend the sentence of imprisonment as well as fine qua all the applicants/ convicts during pendency of their appeals. 23. Therefore, it is directed that all three applicants/convicts, shall be released on bail on furnishing personal bond in the sum of ` 1.00 Lac each with one surety of the like amount to the satisfaction of learned Trial Court. 24. Accordingly, Criminal M.B. No.193/2011 in Criminal Appeal No.148/2010; Criminal M.B. No.247/2010 in Criminal Appeal No.190/2010; and Criminal M.B. No.362/2010 in Criminal Appeal No.148/2010 stands allowed and disposed of. 25. In view of above, Crl.M.B.No.323/2011 in Criminal Appeal No.190/2010 preferred by applicant/convict Som Nath Sharma for interim bail for a period of three months; stands disposed of as infructous. 26. Before parting with present order, it is made clear that nothing observed herein shall amount to an observation on the merits of the case, which are confined for adjudication of bail applications only, as the appeals are yet to be heard and adjudicated upon. 27. Copy of order be sent to the Jail Superintendent, for compliance. 28. Dasti. FEBRUARY 06, 2012 Sd./- SURESH KAIT, J