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2008 DIGILAW 956 (MAD)

Paramananthan Yoganatham v. Intelligence Officer

2008-03-17

M.JEYAPAUL

body2008
JUDGMENT : The petition is filed seeking suspension of sentence and also grant of bail. 2. The petitioner was convicted and sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,00,000/= in default to undergo six months rigorous imprisonment for offences punishable under sections 29, 8(c) read with 21(c) and 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. On the side of the Prosecution, 5 witnesses were examined and as many as 42 documents and 8 M.Os were marked. On the side of the defence, no oral or documentary evidence was let in. The Trial Court, having relied upon the oral and documentary evidence produced by the prosecution, has come to the conclusion that the accused has committed the aforesaid offences. 4. Learned counsel appearing for the petitioner would vehemently submit that there is no criminal antecedents for the petitioner who was incapable of committing any crime of this gravity. He being a foreigner cannot fly away to other countries without the passport. It is his further submission that the petitioner has been in incarceration for the past five years and ten months right from 15. 2002. It may take another seven years for the disposal of this case. By the time, the main appeal is taken up and disposed of by this court, the petitioner would have already undergone the entire sentence. Inasmuch as the petitioner has already undergone more than half of the sentence imposed on him, interest of justice warrants suspension of sentence and grant of bail to the petitioner. On merit, he would argue that the prosecution has come out with a contradictory version as to the colour of the suit case which allegedly contained the contraband. There had been a delay in despatching the contraband to the chemical analyst. No British Airways official was examined to speak about the seizure of the contraband from the petitioner who is a foreign national. Therefore, he would contend that the petitioner is entitled to suspension of sentence and grant of bail. 5. There had been a delay in despatching the contraband to the chemical analyst. No British Airways official was examined to speak about the seizure of the contraband from the petitioner who is a foreign national. Therefore, he would contend that the petitioner is entitled to suspension of sentence and grant of bail. 5. Learned Special Public Prosecutor for NCB would submit that only when the court is satisfied that there are reasonable grounds for believing that the petitioner is not guilty of any of the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 and that he is not likely to commit any such offences while on bail, the application seeking suspension of sentence and grant of bail can be considered under section 32-A read with section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Trial Court, having adverted to the voluminous evidence available on record, has come to a definite conclusion that the accused has committed the offence. Nothing is brought out to shake the belief of the court that the petitioner has committed the offence under the Narcotic Drugs and Psychotropic Substances Act, 1985. The seizure of the contraband was established before the Trial Court. The non-examination of the British Airways officials cannot be a ground to reject the voluminous evidence pointing to the guilt of the accused. The Trial Court has before recording conviction deliberated upon all submissions made by the learned counsel for the accused as regards the alleged discrepancy in the colour of the suitcase which contained the contraband and the alleged delay in despatching the material object to the chemical analyst. It is his further submission that a time frame may be fixed for the disposal of the main criminal appeal itself considering the long incarceration of the petitioner. 6. It is found that the seizure of the contraband has been established by the prosecution. The contention raised by the petitioner that there is some conflicting versions as to the colour of the suitcase which contained the contraband has been properly explained by the prosecution during the course of trial of the case. The delay in despatching the material object to the chemical analyst was also satisfactorily explained by the prosecution. The contention raised by the petitioner that there is some conflicting versions as to the colour of the suitcase which contained the contraband has been properly explained by the prosecution during the course of trial of the case. The delay in despatching the material object to the chemical analyst was also satisfactorily explained by the prosecution. As rightly pointed out by the learned Special Public Prosecutor for NCB, the non-examination of the British Airways officials when other evidence is available to establish the seizure does not create a dent in the case of the prosecution. 7. A different consideration will have to be applied to the offenders of the crime under the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 37 of the said Act specifically states that only when there are reasonable grounds for believing that the accused is not guilty of any of the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 and that he is not likely to commit any such offence while on enlargement on bail, the Trial Court or the appellate Court can positively consider the application seeking bail or suspension of sentence as the case may be. Of course, the power of this court to suspend the sentence awarded under this Act is recognized under section 32-A of the said Act. But, it is found that such a power of suspension of sentence is controlled by the provisions of section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 8. The learned counsel appearing for the petitioner submitted the authority reported in ANANTHI v. STATE REP BY N.I.B. C.I.D., Trichy (2002(1) MWN (Cr.)118) and the authority reported in KUPPAMMAL @ SUBBULAKSHMI v. STATE (2003(1) MWN (Cr.) 49). In those cases, it is found that there had been some lapse on the part of the prosecuting agency in reconciling the material shown to have been seized with the material despatched to the chemical laboratory. The prosecution also could not establish that the parcel brought to the police station was properly sealed by the officer in charge of the police station as required under section 55 of the said Act. The manner of search alleged to have been conducted by the police was not also in accordance with the mandates of the provision under the Narcotic Drugs and Psychotropic Substances Act, 1985. The manner of search alleged to have been conducted by the police was not also in accordance with the mandates of the provision under the Narcotic Drugs and Psychotropic Substances Act, 1985. Therefore, in those two cases, the court has held that the accused in the respective cases was entitled to acquittal. But, here in this case, no such material is brought to the notice of this court to assail the verdict of the Trial Court. In fact, it is found that the prosecution has satisfactorily explained the seizure conducted by the respondent police and the delay in despatching the materials to the chemical examiner. 9. Observing that the delay in constitution of Special Courts as per section 30(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 was frustrating, the Supreme Court in S.C.LEGAL AID COMMITTEE REPRESENTING UNDERTRIAL PRISONERS V. UNION OF INDIA (1995 SCC (Cri.) 39) has directed the accused charged for offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, as he was found languishing in jail for half of the period of sentence, to be released on bail. 10. It is found that though there has been a special provision under the Narcotic Drugs and Psychotropic Substances Act, 1985 for constitution of special courts, the authority concerned has not chosen to constitute special courts which ultimately led to incarceration of the accused for quite a long time in jail. The main reason for releasing the accused charged for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 in the aforesaid case was the non-constitution of the special courts which ultimately resulted in virtual punishment of the accused even before the trial was concluded. Therefore, the aforesaid authority would not apply to the case on hand where the accused was already found guilty of the offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985. The appeal itself was preferred by the petitioner only in the year 2008 after the verdict of conviction was recorded by the Trial Court. 11. The right to personal liberty without prospect of trial being concluded within a reasonable time was deliberated upon in the judgment of the Supreme Court in SHAHEEN WELFARE ASSOCIATION v. UNION OF INDIA (1996 SCC (Cri.) 366). That was not a case arisen under the Narcotic Drugs and Psychotropic Substances Act, 1985. 11. The right to personal liberty without prospect of trial being concluded within a reasonable time was deliberated upon in the judgment of the Supreme Court in SHAHEEN WELFARE ASSOCIATION v. UNION OF INDIA (1996 SCC (Cri.) 366). That was not a case arisen under the Narcotic Drugs and Psychotropic Substances Act, 1985. Therefore, the general proposition laid down in the aforesaid authority has no application to the case under the Narcotic Drugs and Psychotropic Substances Act, 1985. In a case where alarming number of men, women and children were behind the bars for years awaiting trial in courts of law for trivial offences, the Supreme Court has held in HUSSAINARA KHATOON (I) v. HOME SECRETARY ( (1980) 1 SCC 81 ) that prolonged detention of such accused awaiting trial violates Article 21 of the Constitution of India. The pre-trial detention must be based on reasonable just and fair procedure. 12. The aforesaid ratio will have no application to the facts and circumstances of this case where this court is confronted with the embargo found under section 32-A read with section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. A different yardstick has been adumbrated for suspension of sentence and grant of bail in the special statute viz., the Narcotic Drugs and Psychotropic Substances Act, 1985. 13. It can be usefully referred to the authority in DADU V. STATE OF MAHARASHTRA ( (2000) 8 SCC 437 ) where the Supreme Court has held that the power of suspension under section 32-A of the said Act must be exercised within the parameters adumbrated under section 37 of the said Act. 14. In ACHINT NAVINBHAI PATEL V. STATE OF GUJARAT (2002 AIR SCW 2481), the Supreme Court, taking note of the delay occasioned at the instance of the accused by repeated applications seeking interim orders which resulted in stay of further prosecution, has held that just because an accused has been in incarceration for about eight long years, that itself cannot be a ground for grant of bail to an accused charged under the Narcotic Drugs and Psychotropic Substances Act, 1985. The Supreme Court in NARCOTICS CONTROL BUREAU v. DILIP P.NAMADE ( 2004 (3) Scale 474 ) has cautioned the High Court not to overlook the underlying object of section 37 and transgress the embargo statutorily imposed therein while dealing with the application for bail. 15. The Supreme Court in NARCOTICS CONTROL BUREAU v. DILIP P.NAMADE ( 2004 (3) Scale 474 ) has cautioned the High Court not to overlook the underlying object of section 37 and transgress the embargo statutorily imposed therein while dealing with the application for bail. 15. The court finds that the petitioner could not demonstrate before this court that there is no material available on record to find him guilty. In fact, the Trial Court has meticulously analyzed the materials on record and has returned a finding that the petitioner committed an offence punishable under sections 29, 8(c) read with 21(c) and 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The reason that the petitioner has been in custody for the past five years and ten months cannot be a ground for suspending the sentence and granting bail. 16. In view of the above, the petition stands dismissed. But, considering the long detention of the petitioner, the registry is directed to post the main criminal appeal itself for final hearing in the second week of June 2008.