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2020 DIGILAW 1603 (PNJ)

Gurpreet Singh @ Guri v. State Of Punjab

2020-09-02

SANJAY KUMAR

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JUDGMENT Sanjay Kumar, J. - The applicant preferred the subject appeal against the judgment dated 08.11.2019 rendered by the learned Judge, Special Court, Sangrur, in NDPS Act Case No.183 of 20.02.2019, whereby he was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, 'the Act of 1985'), and sentenced to imprisonment for a period of three years apart from payment of a fine of ' 30,000/-. Recovery of the fine having been stayed by this Court pending the appeal, the applicant presently seeks suspension of the sentence of imprisonment visited upon him. 2. Perusal of the judgment under appeal reflects that the Special Court opined that the prosecution had proved beyond reasonable doubt that the applicant was apprehended in possession of 15 kgs. of poppy straw. That would be less than the commercial quantity of 50 kgs. prescribed in the notification issued by the Central Government in the year 2001 under the provisions of the Act of 1985. 3. It may be noted that the Supreme Court, time and again, cautioned that bail should not be granted liberally in cases arising under the Act of 1985 [See Maktool Singh v/s. State of Punjab, (1999) 3 SCC 321 and Achint Navinbhai Patel v/s. State of Gujarat, (2002) 10 SCC 529 . Such observations were obviously made keeping in mind the adverse effects caused by drug addiction and its lethal impact on society at large. However, no guiding principles have been laid down by any Court with regard to exercise of discretion under Section 389 Cr.P.C., while dealing with an application for suspension of the sentence of imprisonment consequent upon conviction under the Act of 1985, in relation to less than the prescribed commercial quantity. Therefore, this Court would have to be mindful of the requirements of law while dealing with the present plea for suspension of the sentence of imprisonment. 4. Section 389(1) Cr.P.C. provides that pending the appeal by a convicted person, the appellate Court would have the power to suspend the sentence or order under appeal but it would have to record in writing, the reasons therefor. In consequence, this mandate would invariably require examination, at least prima facie, of the findings in the judgment under appeal. 5. 4. Section 389(1) Cr.P.C. provides that pending the appeal by a convicted person, the appellate Court would have the power to suspend the sentence or order under appeal but it would have to record in writing, the reasons therefor. In consequence, this mandate would invariably require examination, at least prima facie, of the findings in the judgment under appeal. 5. It may be noted that the specific case of the applicant was that there was non-compliance with the procedure prescribed under Section 50 of the Act of 1985. The finding of the Special Court was that the Investigating Officer was not required in this case to comply with this legal provision and apprise the accused of his legal right to be searched in the presence of a Gazetted Officer or a Magistrate. The basis for this reasoning was that the accused was supposedly carrying an open-mouthed plastic bag with the poppy straw inside. 6. Section 50 of the Act of 1985 provides the conditions under which search of persons should be conducted. Sub-section (1) thereof mandates that the officer conducting the search should inform the person who is to be subjected to the search that, if he so requires, the search would be conducted in the presence of a Gazetted Officer or a Magistrate. Sub-section (2) provides that if such a requisition is made by the person, the officer may detain the person until he can bring him before a Gazetted Officer or Magistrate. 7. It is settled law that the right created under Section 50 of the Act of 1985 is a valuable one. The claim of the applicant that this valuable right was violated in his case requires careful examination in this appeal. Conviction of the applicant notwithstanding, violation of the mandatory statutory procedure would necessarily entail consequences. Further, the applicant has already undergone over 10 months in custody. He would therefore be entitled to relief under Section 389 Cr.P.C. 8. The application is accordingly allowed. The sentence of imprisonment imposed upon the applicant by the judgment under appeal shall stand suspended pending its disposal. The applicant shall be released on bail upon furnishing a personal bond for a sum of 30,000/- along with two sureties for a like sum each to the satisfaction of the Duty/Illaqa Magistrate concerned. Further, the applicant shall maintain peace and good conduct.