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2018 DIGILAW 1011 (JK)

Virender Gupta v. State of J&K

2018-12-21

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Appellant/applicant has filed the instant application for suspension of sentence along with appeal against the judgment and order dated 31.05.2017 passed by the learned 1st Additional Sessions Judge, Jammu, whereby the appellant/applicant has been convicted along with other accused, namely, Nirmal Singh, for the commission of offence punishable under Sections 20 (b)(ii)(c) of the NDPS Act and were sentenced to undergo rigorous imprisonment for a period of ten years each and also sentenced to pay a fine of Rs. 2.00 lacs each and in default of payment of fine, the applicant shall further undergo simple imprisonment for a period of three years. 2. The case of the applicant is that the court below has convicted him by ignoring vital and important aspects of the case irrespective of the fact that the prosecution has miserably failed to prove the guilt of appellant/applicant beyond reasonable doubt. In the application, the appellant/applicant has stated that he has been convicted by the trial court in utter disregard of the law laid down by the Hon’ble Supreme Court of India, while interpreting the various provisions of the NDPS Act and the conviction was recorded only for the sake of conviction, whereas if evidence adduced by the prosecution thoroughly appreciated, the same will definitely demands the acquittal of the appellant/applicant. 3. It has further been stated in the application that the appellant is the only male earning members in his family and has having children and old aged wife for whom the applicant owes a duty and responsibility to maintain. It has also been stated that the applicant/appellant was not posing any kind of threat towards the interest of the society and neither the applicant is habitual offender and as such, his continuous detention is not only a source of harassment to him but due to this, his family too would suffer a lot on account of long incarnation of the appellant/applicant. It is further stated that the appellant/applicant was also suffering from severe problem in his right leg for which he had also undergone surgery and even after the surgery the applicant was not in a position to walk properly. That the applicant belongs to poor stratum of the society and neither he is in a position to pay the fine of Rs. 2.00 lacs imposed upon him as fine. That the applicant belongs to poor stratum of the society and neither he is in a position to pay the fine of Rs. 2.00 lacs imposed upon him as fine. That the conviction imposed upon the appellant/applicant, if not suspended immediately, the appellant/applicant would suffer huge loss and injury which cannot be compensated later on. As such, the appellant/applicant seeks indulgence of this Hon’ble Court for suspension of sentence imposed upon him till disposal of the criminal application. It is also stated in the application that the appellant is ready to abide by all such terms and conditions which this Court may impose. 4. Objections have been filed by the respondent. Stand taken by the respondent is that the Supreme Court in Ash Mohammad vs. Shiv Raj Singh @ Lalla Babu and another reported in (2012) 9 SCC 446 , has observed that though the period of custody is a relevant factor, the same has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents, these are to be weighed in the scale of collective cry and desire and the societal concern has to be kept in view in juxtaposition to individual liberty. It is further submitted that these guidelines have been again underlined on 30.09.2016 by the Apex Court in Shahabudin’s case while cancelling bail granted by the High Court. The respondent specifically denies the allegations and averments made in the application, which are beyond the record. It is further stated that the application of the applicant is based upon no legal substance, hence deserves to be rejected. Respondent has further stated that since the appellant has been found guilty by the trial court vide impugned judgment, convicted and sentenced to undergo minimum rigorous imprisonment of 10 years and to maximum fine of Rs. 2.00 lacs, in default of payment of fine, the defaulting convict shall undergo further simple imprisonment for a period of three years, as such he cannot be said to be an innocent. It is further submitted that appellant has been held guilty of having committed offences of possessing commercial quantities of psychotropic substances in contravention of section 8 of NDPS Act, cannot now be allowed to take refuge in amendment of provisions of laws and plead suspension of the sentence in order to flee from the course of justice. It is further submitted that appellant has been held guilty of having committed offences of possessing commercial quantities of psychotropic substances in contravention of section 8 of NDPS Act, cannot now be allowed to take refuge in amendment of provisions of laws and plead suspension of the sentence in order to flee from the course of justice. It is further submitted by the respondent that those who are unruly and wayward, having no respect of law of the land and right of the other fellow human beings cannot seek indulgence of the Court for enforcement of their own rights, as such, instant application does not merit consideration and needs outright rejection. The liberty of the individual is precious and is to be zealously guarded by the Court, however, such a protection cannot be absolute in every situation. The interest of the society and liberty of the individual has to be balanced. The case in hand is a fit one where collective interest of the community outweighs the right of the personal liberty of the appellant and granting of the bail impedes not only the administration of justice but also is going to injure the public interest rather than to serve it, as such the instant application deserves to be rejected on this count also. It is further submitted that since Court is hearing the criminal application on regular basis, as such, there is every possibility that the instant main application can be taken up for hearing in near future and decided on merits. 5. I have heard and gone through the law on the subject. 6. Section 426 of the Code of Criminal Procedure, deals with the subject. It reads as under: “426. Suspension of sentence pending the application; release of appellant on bail. (1) Pending any application by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order applicationed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an application by a convicted person to a Court subordinate thereto. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an application by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an application, the Court shall,- (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the application and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. 7. From perusal of Section 426 Cr.P.C., it is evident that save and except, the matter falling under category of sub-section (3) neither there happens to be any principle laid down nor criteria has been fixed for consideration of the prayer of the appellant/convict and further, having a judgment of conviction erasing the presumption leaning in favour of accused regarding innocence till contrary recorded. There is thus a distinction in between pre-conviction as well as post conviction prayer for granting or refusing the bail. 8. On account of deficiency of the judges in comparison to filing, pendency of the application, backlog has gone up in such a manner that it appears as if impossible but a exceptional task to be undertaken to hear and decide the application at an earliest; so every case of such like nature has to be considered on facts and while granting bail court has to evaluate certain facts of each case; while granting bail or suspending the sentence court should give reasons. 9. In 1999 Cr.LJ 2568 in case titled Bhagwam Rama Shinde Gosai and Ors. Vs. State of Gujarat on 12 May, 1999, it is held as under:- “This is a case where appellants have been convicted by the trial court of the offence under Section 392 read with Section 397 and each of Them was sentenced to rigorous imprisonment for 10 years. Vs. State of Gujarat on 12 May, 1999, it is held as under:- “This is a case where appellants have been convicted by the trial court of the offence under Section 392 read with Section 397 and each of Them was sentenced to rigorous imprisonment for 10 years. They filed an application before the High Court of Gujarat and moved for suspension of sentence, but that was not allowed. At a later stage they again moved for suspension of sentence and that too was dismissed by the impugned order. Unfortunately, when they made a motion for having their application expedited that also was declined by the High Court on the premise that the High Court is having older applications on the board. When a convicted person is sentenced to fixed period of sentence and when he files application 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 the sentence of limited duration cannot be suspended every endeavour should be made to dispose of the application on merits more so when motion for expeditious hearing the application is made in such cases. Otherwise the very valuable right of application would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such applications cannot be disposed of expeditiously the appellate court must bestow special concern in the matter suspending the sentence, so as to make the application right meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted. In this case as the High Court was not inclined to hear the application expeditiously we are of the view that the sentence passed on appellants can be suspended on some stringent conditions. We, therefore, suspend the sentence and direct the appellants to be released on bail on each of them executing a bond to the satisfaction of Additional Sessions Judge, Nadiad. We direct the appellants to report to Kapadwang Police Station on all Mondays and Thursdays between 4.00 P.M. and 6.00 P.M. until disposal of the application pending before the High Court.” 10. We direct the appellants to report to Kapadwang Police Station on all Mondays and Thursdays between 4.00 P.M. and 6.00 P.M. until disposal of the application pending before the High Court.” 10. In the present case, from the perusal of record, it is evident that accused was arrested on 13.10.2010 along-with another accused on the allegation of recovery of 5 kg of charas; both faced trial and judgment of conviction has been passed on 31.05.2017. The application has not been heard finally because many applications prior to the instant application are pending for hearing. There is no chance of early hearing of the matter. 11. So I am of the considered view that there is ground to suspend the sentence at this stage. Hence, sentence passed by court below is suspended. Accused/appellant shall be enlarged on bail subject to his furnishing of surety bond and personal bond of Rs.50,000/- each subject to satisfaction of Registrar Judicial of this Court. Provided appellant shall not come in contact with complainant party; shall attend the court on each date; shall not leave jurisdiction of the court; shall report before concerned police station on the 1st day of each month till appeal is decided. In case of violation of any condition, prosecution or complainant may ask for cancellation of bail. 12. IA No.01/2017 stands disposed of.