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2023 DIGILAW 1029 (ALL)

Hemraj Patwa v. State of U. P.

2023-04-13

VINOD DIWAKAR

body2023
JUDGMENT : In Re: Criminal Misc Suspension of Sentence Applications 1. I have heard learned counsel for the accused -appellants and learned A.G.A for the State. 2. Aggrieved by the judgment and order dated 30.09.2022 passed by Additional Sessions Judge/F.T.C.-II/Special Judge, N.D.P.S. Act, Kaushambi, in Case No. 14 of 2012 titled as State Vs. Bhola Patel (lead case), the accused-applicant Hemraj Patwa, and Vinita Devi have preferred separate appeals bearing Criminal Appeal No. 8454 of 2022 and Criminal Appeal No. 7997 of 2022, respectively. The accused, Bhola Patel, Raju Maurya @ Anil Kumar and Manoj Kumar Maurya, have been acquitted under Section 8/20 NDPS Act by giving the benefit of the doubt, whereas accused-appellants Hemraj Patwa and Vinita Devi have been convicted and sentenced to ten years rigorous imprisonment along with fine of Rs. 1,00,000/- each. 3. As per the prosecution case, on 17.04.2012 at about 12.30 p.m. SHO Dinesh Prakash Pandey, along with other police officials, were patrolling and checking the anti-social elements. At the same time, SI Onkar Nath Pandey, Hawaldar Singh and lady constable Rukmani Devi have also joined the police party. On receipt of secret information that accused Bhola of village Pachasa P.S. Saini has hidden huge quantity of Ganja in his thatch and he could be arrested along with other suspects. Upon conducting the raid, one man and one woman were apprehended by the police, but one man ran away from the place of the incident taking advantage of darkness. On enquiry from the apprehended suspects, one disclosed his name as Hemraj Patwa and the woman disclosed her name as Vinita Devi W/o Bhola Patel. On enquiry from the suspects, it's revealed that Bhola Patel had escaped by taking advantage of darkness. Upon compliance with the statutory provisions, a huge quantity of recovery seizure was made, and a total of 152 Kg Ganja was recovered from the possession of accused persons. The 152 Kg Ganja have been kept in four bags, each containing 47 kg, 45 kg, 35 Kg and 25 Kg. From the possession of Hemraj Patwa, two bags of Ganja were recovered containing 47 Kg and 45 Kg each, whereas 60 Kg of Ganja was recovered from accused Vinita Devi, kept in two bags containing 35 Kg and 25 Kg each. 4. From the possession of Hemraj Patwa, two bags of Ganja were recovered containing 47 Kg and 45 Kg each, whereas 60 Kg of Ganja was recovered from accused Vinita Devi, kept in two bags containing 35 Kg and 25 Kg each. 4. Upon completion of the trial, both the accused-appellants were awarded the maximum sentence of 10 years and a fine of Rs.1,00,000/-and in default payment of the fine, the accused-appellants were further directed to undergo simple imprisonment for a period of two years. 5. Learned counsel for the accused appellants submits that the accused-appellants were falsely implicated in the case at the behest of police. He further urged that when the matter was highlighted in the media on the national level and in local newspapers, that the huge quantity of contraband has been recovered from the truck container within the jurisdiction of P.S. Saini, District Kaushambi, the driver and Khalasi of the truck were let to go by the police by taking huge bribe. The actual culprits paid the bribe, and they were freed by the police and planted the recovery on the accused-appellants. He further urged that no independent witnesses to the recovery have been produced by the prosecution nor the compliance of Section 50 of the NDPS Act been effected. The investigating officer has also not complied with the requirement of Section 57 of the NDPS Act. He further urged that the information of the alleged recovery was not provided to the senior officers immediately, violating the spirit of Section 42 of the NDPS Act. The non-compliance of Sections 42, 50 and 57 has seriously damaged the prosecution's case, and the prosecution has failed to prove the recovery from the possession of accused persons and lastly urged that both the accused persons were on bail during the trial. 6. Per contra, learned A.G.A. submits that the provisions of Sections 42, 50 and 57 of NDPS Act have been duly complied with by the investigating agency, the same has been duly proved from the perusal of the testimony of S.I. Dinesh Prakash Pandey, Inspector Raj Kumar Pandey, S.I. Onkar Nath Pandey and Inspector Ravindra Tiwari. Learned A.G.A further urged, upon perusal of the trial court record, it transpires that a huge quantity of Ganja measuring 152 Kg was recovered from the possession of the accused persons. Learned A.G.A further urged, upon perusal of the trial court record, it transpires that a huge quantity of Ganja measuring 152 Kg was recovered from the possession of the accused persons. Learned A.G.A further submits that the testimony of the prosecution witness cannot be discarded only because the prosecution case is proved by the official witnesses in the present case. S.I. Dinesh Prakash Pandey, Inspector Raj Kumar Pandey, SI Onkar Nath Pandey and Inspector Ravindra Tiwari have fully supported the prosecution case, and their testimony is consistent and reliable. He further submits that the recovery of contraband substances has been effected from the possession of accused-appellants Hemraj Patwa and Vinita Devi. 7. Admittedly, the huge commercial quantity of Ganja of 152 Kg has been recovered from the possession of accused-appellants Hemraj Patwa and Vinita Devi, and they are presumed to have the criminal mental State to possess the above contraband substance, and hence burden lies upon them to prove the absence of criminal intent. 8. Even though the police witnesses are interested witnesses, but there is no reason on record to disbelieve the testimony of above said witnesses. 9. Therefore, the combined effect of Sections 35 and 54 of the NDPS Act is that if the accused is found to be in possession of contraband substance, the Court shall presume that he has committed an offence under the provisions of the Act unless or until the contrary is proved further, if the criminal mental State of the accused is required to be established for the offence. In that case, the Court shall also presume that the accused shall have a mental state, and it is only the defence of the accused to prove that he has no such mental state to possess contraband. 10. The short question that arises for consideration in this application is, whether accused-appellants are entitled to be released on bail when they were on bail during the trial. 11. As observed by this Court in Preet Pal Singh vs. State of U.P., 2020 (8) SCC 645 , There is a difference between the grant of bail under Section 439 of the CrPC in case of pre-trial arrest and the suspension of sentence under Section 389(1) of the CrPC and the grant of bail, post-conviction. In the earlier case, there may be a presumption of innocence, which is a fundamental postulate of criminal jurisprudence. In the earlier case, there may be a presumption of innocence, which is a fundamental postulate of criminal jurisprudence. The courts may take a liberal view depending on the facts and circumstances of the case, whereas in the case of post-conviction bail, there is a finding of guilt against the accused persons. The question of presumption of conviction does not arise. The Court considering an application for suspension of sentence and grant of bail is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong, compelling reasons for the grant of bail, which must be recorded in the order granting bail. 12. The discretion under Section 389(1) is to be exercised judicially, and the High Court is obliged to consider whether the accused has a strong likelihood to succeed in appeal, and there is no unreasonable delay in disposal of the appeal, as held by Apex Court in Kashmira Singh v. State of Punjab, 1977 (4) SCC 291 and Babu Singh and Ors. v. State of U.P. 1978 (1) SCC 579 . 13. In Kalyan Chadra Sarkar v. Rajesh Ranjan and Anr. 2004 (7) SCC 528 , the Hon’/ble Supreme Court has held:- “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind." 14. Even though a detailed examination of the merits of the case may not be required by the courts while considering an application for bail, at the same time, the exercise of jurisdiction has to be based on well-settled principles and in a judicious manner and not as a matter of course as held by this Court in Chaman Lal v. State of U.P. and Anr., 2004 (7) SCC 525 . 15. 15. Be that as it may, the detailed examination of evidence and detailed documentation on the merits of the case need not be undertaken while deciding the application of suspension on bail. The power of this Court to grant bail under Section 389(1) Cr.P.C, are subject to the limitations contained in amended Section 37 of the NDPS Act, and the restrictions placed on the power of the Court under the said section are applicable to this Court in the matter of granting bail. 16. Hon’ble Supreme Court in Preet Pal Singh (supra) has held as under:- “35. There is a difference between the grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and the grant of bail, post-conviction. In the earlier case, there may be a presumption of innocence, which is a fundamental postulate of criminal jurisprudence. The courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr. (supra). However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt, and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted once there is a conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong, compelling reasons for the grant of bail, notwithstanding an order of conviction, by suspension of sentence. This strong and compelling reason must be recorded in the bail order, as mandated in Section 389(1) of the Cr.P.C. 38. In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that the Trial Court has considered, it is not open to this Court to consider the application under Section 389 (1) Cr.P.C to reassess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail." 17. Where there is evidence that the Trial Court has considered, it is not open to this Court to consider the application under Section 389 (1) Cr.P.C to reassess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail." 17. The huge quantity of 152 kg of Ganja has been recovered from the possession of the accused-appellants, and they are presumed to have the criminal mental State to possess the above contraband substance; hence burden lies upon them to prove the absence of criminal intent. 18. The accused-appellant, Hemraj Patwa is involved in four cases registered at Police Station Dhoomanganj, District Prayagraj. The details are as under:- (i) Case Crime No. 186 of 2012 under Section 8/20 N.D.P.S. Act P.S. Saini, District Kaushambi. (ii) Case Crime No. 233 of 2016 under Section 3/25 Arms Act P.S. Pipari, District Kaushambi. (iii) Case Crime No. 199 of 2016 under Section 3025/120B IPC P.S. Pipari, District Kaushambi. (iv) Case Crime No. 348 of 2016 under Section 2/3(1) U.P. Gangster Act P.S. Pipari, District Kaushambi. 19. The total custody period of accused-appellant Hemraj Patwa as on date is 10 months and 15 days with remission whereas total custody period of accused-appellant Vinita Devi as on date is 11 months and 2 days with remission. 20. (i) The counsel for the accused-appellants could not point out patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. At this stage, it is not open to this Court to reassess and / reanalyze the same evidence to take a different view, to suspend the execution of the sentence and release the convict on bail. 20. (ii) Considering the actual custody of the accused-appellants, the huge commercial quantity of Ganja recovered from the possession of the accused-appellants. 20. (iii) And the condition contained in Section 37 of the NDPS Act are not satisfied. 21. The application for suspension of sentence filed in Criminal Appeal No.8454 of 2022 and Criminal Appeal No.7997 of 2022 are rejected. 22. Through this common order, the applications for suspension of the sentence of accused-appellants Hemraj Patwa and Vinita Devi are disposed of accordingly. 23. 21. The application for suspension of sentence filed in Criminal Appeal No.8454 of 2022 and Criminal Appeal No.7997 of 2022 are rejected. 22. Through this common order, the applications for suspension of the sentence of accused-appellants Hemraj Patwa and Vinita Devi are disposed of accordingly. 23. The observation made by this Hon'ble Court while disposing of the application for suspension of sentence in Criminal Appeal No.8454 of 2022 and Criminal Appeal No.7997 of 2022 shall have no bearing on the outcome of the final appeal. 24. List this appeal for hearing after six months. If the appeal is not heard within two years despite the cooperation and endeavours of the accused-appellants, they shall be at liberty to revive the prayer for grant of bail.