In CRM-44634-2021-PUNJ HC- Article 21 of Constitution confers right to speedy trial/speedy hearing of Appeal against conviction conferred on convict under NDPS Act, reaffirms P&H HC
Justices M.S. Ramachandra Rao & Sukhvinder Kaur [15-03-2023] 

Read Order:   TALIM KHAN  VS. INTELLIGENCE OFFICER

Mansimran Kaur

Chandigarh, April 10,2023:  The Punjab and Haryana High Court has allowed an application filed under section 389 (2) of Cr.P.C. seeking suspension of sentence imposed on the appilcant-accused by the Special Court Judge in NDPS case after noting that the accused was in custody for a considerable amount of time.

The Division Bench of Justice M.S. Ramachandra Rao & Justice Sukhvinder Kaur allowed the present application by observing that since in the instant case the applicant had  undergone 5-and-a-half years of total custody and more than 2 years of custody after conviction, and since the applicant would anyway serve the sentence imposed by the Special Court and undergo the full period of custody if the appeal was dismissed.

The applicant had challenged the said judgment in this Court. This Court had admitted the Appeal on November 4, 2019 and had stayed the recovery of the fine during the pendency of the Appeal. 

Notice in the application for suspension of sentence was also issued.

The applicant’s Counsel contended that the applicant had been wrongly convicted by the Special Court under section 15(c) of the Act. It was submitted that the  judgment of the Special Court was perverse as there is no direct evidence and there were several contradictions in the statements of the prosecution witnesses which were not considered properly by the Special Court; in any event no reasons have been assigned by the Special Court for imposing punishment on the applicant beyond the minimum period of 10 years as mandated by Section 32-B of the Act.

As per the applicant, there was no possibility of the Appeal being heard in the near future and there was every danger of the Appeal becoming infructuous if the applicant was denied benefit of suspension of rest of his sentence.

After considering the rival contentions of the parties, the Court noted that in the instant case, the applicant was convicted under Section 15 (c) of the Act and sentenced to 12 years of custody and fine. His Appeal was pending before this Court and there is no likelihood of the said appeal being heard in the near future. He has already undergone 5 and half years of custody including post conviction custody of more than 2 years.  

Reference was placed on the judgment in Daler Singh vs. State of Punjab.  In Tofan Singh vs. State of Tamilnadu, a three judge Bench of the Supreme Court had held that the Act has to be construed in the backdrop of Article 21 and in tune with the fundamental right conferred by it. 

In view of this additional factor, the Court was of the considered opinion that the norm of undergoing minimum mandatory period of custody of 6 years for consideration of grant of relief of suspension of sentence in cases where there is conscious possession of commercial quantity of contraband laid down in the decision of Daler Singh case (supra) is liable to slightly relaxed by 6 months while maintaining the minimum custody of 15 months after conviction. 

In the instant case the applicant had undergone 5-and-a-half years of total custody and more than 2 years of custody after conviction, and since the applicant was to anyway serve the sentence imposed by the Special Court and undergo the full period of custody if the appeal was dismissed. 

 Hence, without expressing any opinion on the merits of the contentions of the parties in the Appeal, this application was allowed and the rest of the sentence imposed on the applicant by the Special Court Judge was suspended subject to the applicant furnishing bail bonds/surety bonds to the satisfaction of Duty Magistrate/Chief Judicial Magistrate concerned.