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2024 DIGILAW 82 (HP)

Gian Chand v. State of Himachal Pradesh

2024-01-12

RAKESH KAINTHLA

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JUDGMENT : Rakesh Kainthla, J. Cr. MP No.4147 of 2023 The applicant/appellant has filed the present application for seeking suspension of the sentence imposed by the learned Trial Court. It has been asserted that the applicant was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- and in default of payment of the fine to undergo rigorous imprisonment for six months for the commission of offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances (in short ‘NDPS Act’). There are good arguable points in the appeal and the appeal is likely to succeed. The learned Trial Court has committed various irregularities and illegalities and the findings recorded by the learned Trial Court are liable to be set aside. The appeal is likely to take some time for its disposal and in case, the sentence awarded by the learned Trial Court is not suspended, the very purpose of filing the appeal would be defeated. The applicant has already spent two months in judicial custody. He was enlarged on bail by the learned Trial Court. He did not misuse the liberty granted to him; hence, the present application. 2. The application is opposed by filing a reply asserting that 340 grams of cannabis was recovered from the possession of the applicant. The charge sheet was presented against the applicant in the Court of learned Special Judge, Mandi. The learned Special Judge, Sundernagar convicted the applicant and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.50,000/- and in default of payment of the fine to undergo rigorous imprisonment for six months. The applicant remained under police custody w.e.f. 23.01.2016 till 27.01.2016 and judicial custody from 27.01.2016 till 24.02.2016. He was sent to Central Jail, Nahan and is presently lodged in Central Jail, Nahan. The applicant has committed an offence of a serious nature and he was rightly convicted by the learned Trial Court. There is no infirmity in the judgment and order passed by the learned Trial Court. There is every likelihood of the commission of a similar offence by the applicant, in case of suspension of his sentence. Therefore, it was prayed that the present application be dismissed. 3. I have heard Mr. Sunil Kumar Banyal, learned counsel for the applicant/appellant and Mr. Prashant Sen, learned Deputy Advocate General for the non-applicant/respondent/State. 4. Mr. There is every likelihood of the commission of a similar offence by the applicant, in case of suspension of his sentence. Therefore, it was prayed that the present application be dismissed. 3. I have heard Mr. Sunil Kumar Banyal, learned counsel for the applicant/appellant and Mr. Prashant Sen, learned Deputy Advocate General for the non-applicant/respondent/State. 4. Mr. Sunil Kumar Banyal, learned counsel for the applicant/appellant submitted that the applicant was on bail throughout the trial and he had not misused the liberty extended to him. There are various infirmities in the prosecution case hence, he prayed that the present application be allowed and the applicant be released on bail. 5. Mr Prashant Sen, learned Deputy Advocate General for the non-applicant/respondent/State submitted that the learned Trial Court had rightly considered the evidence on record and there is no infirmity in the judgment and order passed by the learned Trial Court. The mere fact that the applicant was on bail throughout the trial is not sufficient to grant bail under Section 389 of Cr.P.C. during the appeal. The offences proved against the applicant are heinous and adversely affect the society at large; hence, he prayed that the present application be dismissed. 6. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 7. It was laid down by the Hon’ble Supreme Court in Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6 SCC 123 : 2023 SCC OnLine SC 551 that the Court should consider the gravity of the offence while considering an application for bail under Section 389 of Cr. P.C. The Courts should not release a person on bail merely because he was on bail throughout the trial and had not misused the concession of liberty granted to him. It was observed: “21. Suspension conveys postponement or temporarily preventing a state of affairs from continuing. According to Black's Law Dictionary (Seventh Edition), the word “suspend” means, inter alia, to interrupt; postpone; or defer. Black's Law Dictionary (Seventh Edition) describes the word “suspension” to mean, inter alia, an act of temporarily delaying, interrupting or terminating something. Attributing the same meaning to the word “suspend” as pointed out above, the New Oxford Dictionary of English (1998 Edition) describes suspending as temporarily preventing from continuing or being enforced or given effect or deferring or delay an action, event or judgment. 22. Attributing the same meaning to the word “suspend” as pointed out above, the New Oxford Dictionary of English (1998 Edition) describes suspending as temporarily preventing from continuing or being enforced or given effect or deferring or delay an action, event or judgment. 22. Thus, when we speak of suspension of sentence after conviction, the idea is to defer or postpone the execution of the sentence. The purpose of postponement of sentence cannot be achieved by detaining the convict in jail; hence, as a natural consequence of postponement of execution, the convict may be enlarged on bail till further orders. 23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of competent jurisdiction. Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified. 24. From a perusal of Section 389 CrPC, it is evident that save and except the matter falling under the category of sub-section (3) neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post-conviction stage viz. Sections 437, 438, 439 and 389(1)CrPC. xxxxxxxx 33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has a fair chance of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not re-appreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 8. Similarly, it was held in (NCT of Delhi) v. Lokesh Chadha, (2021) 5 SCC 724 : (2021) 2 SCC (Cri) 704: 2021 SCC OnLine SC 178, that while granting bail under Section 439 of Cr.P.C., the Courts are liberal and apply the principle that bail is a rule and jail is an exception; however, in case of post-conviction bail, there is a finding of guilt and the question of presumption of innocence does not arise. The bail cannot be granted in NDPS cases lightly. It was observed: “10. At this stage, we will refer to the decision of a two-judge Bench of this Court in Preet Pal Singh v. State of U.P. [Preet Pal Singh v. State of U.P., (2020) 8 SCC 645 : (2020) 3 SCC (Cri) 897] where Indira Banerjee, J., speaking for the Court, observed as follows : (SCC p. 655, para 35) “35. There is a difference between the grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 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, and 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. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] 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 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 grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC.” 11. The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v. Rajesh [State of Kerala v. Rajesh, (2020) 12 SCC 122 : (2020) 4 SCC (Cri) 147]. The High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) CrPC was established. The order granting suspension of sentence under Section 389(1) CrPC is unsustainable and would accordingly have to be set aside.” 9. Similarly, it was held in Union of India v. Mahaboob Alam, (2004) 4 SCC 105 : 2004 SCC (Cri) 912: 2004 SCC OnLine SC 280, that a murderer murders one or two persons while a person dealing in Narcotic Drugs inflicts death blow to many innocent young victims; hence, the Court should not grant bail lightly in NDPS Cases. It was observed: “8. In the case of Dadu v. State of Maharashtra [ (2000) 8 SCC 437 : 2000 SCC (Cri) 1528] this Court held that though a part of Section 32-A insofar as it ousts the jurisdiction of the court to suspend the sentence awarded to the convict under the Act is unconstitutional, still held that the whole of the section would not be invalid and the restriction imposed by the offending section was distinct and severable. It further held that the legislative mandate under that section has to be followed by the courts while granting bail to the offenders under the Act. It further held that the legislative mandate under that section has to be followed by the courts while granting bail to the offenders under the Act. It also held [ at SCC p. 456, para 28 quoting from Union of India v. Ram Samujh, (1999) 9 SCC 429 , pp. 431-32, para 7] that the court should bear in mind “that in a murder case, the accused commits the murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The reason may be large stake and illegal profit involved”. In the said judgment this Court also relied on the following passage with approval in the case of Durand Didier v. Chief Secy., Union Territory of Goa [ (1990) 1 SCC 95 : 1990 SCC (Cri) 65] in the following words: (SCC p. 104, para 24) “24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing Act 81 of 1985 specifying mandatory minimum imprisonment and fine.” 9. Following the above dangerous trend arising out of the narcotics trade, this Court in the said case held that though the court has the power of granting bail in spite of the language of Section 32-A, the same should be done only and strictly subject to the conditions spelt out in Section 37 of the Act.” 10. Following the above dangerous trend arising out of the narcotics trade, this Court in the said case held that though the court has the power of granting bail in spite of the language of Section 32-A, the same should be done only and strictly subject to the conditions spelt out in Section 37 of the Act.” 10. In the present case, the applicant was found guilty of possessing 340 grams of cannabis and was sentenced to undergo rigorous imprisonment for five years because of the social impact of such a crime. There is a force in the submission on behalf of the State that the offence is heinous and affects the society at large. Hence, keeping in view the gravity of the offence, the applicant cannot be released on bail. 11. It was submitted that there are various infirmities in the judgment passed by the learned Trial Court, however, such infirmities were not pointed out in the present case. There is no material on record to show, prima facie, that the evidence against the applicant is so feeble that ultimately in all probabilities the proceedings would terminate in the applicant’s favour; hence, the applicant cannot be released on bail. 12. It was submitted that the disposal of the appeal is likely to take some time and the applicant is entitled to bail. This submission cannot be accepted. The cases of undertrial prisoners are being taken up on priority and the applicant is at liberty to approach the Court, in case, his appeal is not taken up and he has to remain in jail, without his appeal being considered. However, it would be difficult to agree with this submission at this stage that the applicant is entitled to bail on the ground that his appeal is not likely to be taken up soon. 13. Hence, the bail cannot be granted to the applicant at this stage keeping in view the quantity of the cannabis recovered from his possession. 14. Consequently, the present application fails and the same is dismissed.