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2014 DIGILAW 104 (JK)

Nazir Ahmad Matoo v. State Of J&K

2014-03-11

JANAK RAJ KOTWAL

body2014
1. Heard. 2. In a trial arising in FIR No. 39/2012 of Police Station, Udhampur, trial court vide judgment dated 30.05.2013 has convicted applicants/appellants of the offence under section 8/20 NDPS Act and sentenced each of them to rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/. The appellants were found possessing Charas weighing 33 Kgs and 500 grams in a car, going towards Jammu on 26.03.2012. They have preferred appeal, which has been filed on 10.06.2013, before this Court against the conviction and sentence. 3. The appellants by the application on hand have sought bail mainly on the ground that appeal could not be taken up for hearing on six dates of hearing. 4. Mr. T. S. Hussain, learned counsel appearing for the appellants, submitted vehemently that, having been listed six times, the appeal did not reach for hearing and therefore, appellants are entitled to be released on bail in view of the judgment rendered by Hon'ble Supreme Court reported as AIR 1999 S.C. 1895. He submitted that the appellants have been sentenced for a fixed term of ten years each and it being not possible for the Court to take up the appeal for hearing, right to bail has accrued to the appellants. Mr. Hussain submitted also that in similar circumstances this Court, while following the Supreme Court judgment (supra), has granted bail to Mohd. Issac Pala and others. Mr. Hussain submitted further that speedy trial as well as speedy disposal of appeal against conviction is a fundamental right of a person and if that is not possible, bail becomes a right. Mr. Hussain in his submissions even said that conviction and sentence against the appellants is not well founded and cited number of judgments to assail the judgment of the trial Court. 5. Per contra, Mr. S. A. Naik, learned AAG, opposed the application with no less vehemence. He submitted that, given the nature of offence proved against the appellants and the huge quantity of contraband recovered from them, bail to them is barred under section 37 of the NDPS Act. 6. It is apt to refer to the observation of Their Lordships in Bhagwan Rama Shinde Gosai's case (supra) relied upon by Mr. Hussain, learned counsel for the appellants. Their Lordships in para 3 of the reporting have observed: "3. 6. It is apt to refer to the observation of Their Lordships in Bhagwan Rama Shinde Gosai's case (supra) relied upon by Mr. Hussain, learned counsel for the appellants. Their Lordships in para 3 of the reporting have observed: "3. When a convicted person is sentenced to fixed period of sentence and when he files appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason for sentence of limited duration cannot be suspended every endeavor should be made to dispose of the appeal on merits more so when motion for expeditious hearing the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate Court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate Court must bestow special concern in the matters of suspending the sentence. So as to made the appeal right meaningful and effective. Of course appellate Courts can impose similar conditions when bail is granted." 7. Contextually, it needs to be observed that it may not be correct to say that there had been any delay in either trial of the case or disposal of the appeal as much as to make out a ground for applying for bail on that score. Trial of the case has been completed in a period of slightly over one year and this appeal is not more than nine months old. Minutes recorded in the file would show that this Court has resorted to take up the appeal for final hearing in continuation with its admission though, for one reason or the other, it could not be heard. Contention of Mr. Hussain in this behalf therefore, is liable to be rejected. 8. As regards the application of the judgment (supra) relied upon by the learned counsel for appellants, it is seen that neither suspension of sentence nor release on bail of a convict follows as a natural consequence of filing of appeal against conviction and sentence. Contention of Mr. Hussain in this behalf therefore, is liable to be rejected. 8. As regards the application of the judgment (supra) relied upon by the learned counsel for appellants, it is seen that neither suspension of sentence nor release on bail of a convict follows as a natural consequence of filing of appeal against conviction and sentence. It is rather held by their Lordships that as a general rule suspension of sentence can be considered by the appellate court liberally if sentence imposed is for a fixed term but cases falling under exceptional circumstances or carrying statutory restrictions are excluded. 9. Appellants were allegedly possessing huge quantity of the contraband and charge against them has been proved at trial of the case. Section 37 of NDPS Act imposes restriction against bail in cases involving commercial quantity of the contraband and accused cannot be released on bail unless court finds reasons to believe that he is not involved in commission of the offence, which, however, is not possible to say in this case at this stage. Appellants, therefore, are not entitled to bail and for that also to suspension of sentence imposed by the learned trial Court. 10. For aforementioned prayer for bail is rejected and application dismissed. 11. Bail Application No. 89/2013 is disposed of. Criminal Appeal No. 12/2013 List in 1st week of April, 2014.