[NDPS Act] Suspension Of Earlier Sentence Does Not Wipe Out Conviction, Can't Say Accused's Credentials Are 'Clean': Punjab & Haryana HC

The Punjab & Haryana High Court has made it clear that suspension of the previous sentence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) does not wipe out the conviction and it cannot be said that the credentials of the accused seeking bail is clean.

The Court rejected the bail plea of the man allegedly involved in trading contraband inside jail in commercial quantities stating that the twin conditions under Section 37 of the NDPS Act were not met.

Section 37 states that bail should not be granted to an accused unless the accused is able to satisfy twin conditions i.e. reasonable ground for believing that the accused is not guilty of such an offence and that the accused would not commit an offence or is not likely to commit an offence, if granted bail.

While noting that the petitioner was previously convicted under the NDPS Act, Justice Mahabir Singh Sindhu said, "sentence of petitioner has been suspended; but that will not wipe out the conviction. Thus, the credentials of petitioner cannot be said to be clean. In view of the above, this Court is not inclined to record the twin test satisfaction in favour of the petitioner as per Section 37 of the NDPS Act."

Justine, the petitioner, had filed the bail plea under Section 439 of the Code of Criminal Procedure seeking bail pending trial in a FIR  lodged in 2022, under Sections 21-C, 29 and 31 of the NDPS Act.

According to the prosecution, 500 grams of heroin and 120 grams of Ice containing salt methamphetamine were recovered from co-accused Ajit Kumar and Rupesh Kumar respectively and the petitioner was nominated in FIR on disclosure of co-accused Ajit Kumar.

The counsel for the petitioner contended that the petitioner was not named in the FIR, but rather nominated on the basis of disclosure made by the co-accused.

It was added that the petitioner was already in custody in some other case; thus, he has been falsely implicated in the present case.

Opposing the bail, the State counsel contended that the petitioner is a member of a racket, being operated inside the jail and supplying the drugs.

Also, it was submitted that the recovery alleged in the present case is commercial in nature and as such, in view of the bar under Section 37 of the NDPS Act, the present petition is liable to be dismissed.

After examining the submissions, the bench referred to Section 37 of the NDPS Act, stating that "in the nature of non-obstante clause and which, interalia, lays down that no person accused of an offence involving commercial quantity shall be released on bail, unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and not likely to commit any offence while on bail."

"Both the above conditions are cumulative and not alternative. The law is well settled that requirement of satisfaction in terms of Section 37 (1)(b)(ii) (ibid) regarding the accused being not guilty is to be recorded on the basis of reasonable grounds and that should be more than prima facie," the judge added.

Adding that the suspension of the sentence would not wipe out the conviction, Justice Sindhu highlighted that, "it is not in dispute that initially, petitioner was not named in the FIR; but during the course of investigation, it surfaced that he is a part of racket and the petitioner was nominated as an accused in the present case."

Consequently, the plea was rejected.

Mr. Tarun Singhal, Advocate for the petitioner.

Mr. T.P.S.Walia, AAG, Punjab

Title: Justine v. State of Punjab

Citation: 2024 LiveLaw (PH) 206

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