Punjab And Haryana High Court Relaxes Norm On 'Mandatory Custody' For Suspension Of Sentence In NDPS Cases

A division bench comprising of Justices M.S. Ramachandra Rao and Sukhvinder Kaur of the Punjab and Haryana High Court has held that the norm of undergoing minimum mandatory period of custody of 6 years for consideration of grant of relief of suspension of sentence in cases where there is conscious possession of commercial quantity of contraband (as laid down in the decision of Daler Singh 2007(1) RCR (Criminal) 316) is liable to slightly be relaxed by 6 months while maintaining the minimum custody of 15 months after conviction.

The petition concerned an application filed under section 389 (2) of the Criminal Procedure Code seeking suspension of sentence imposed on the applicant by the Special Court, Ludhiana in an NDPS case convicting him under section 15(c) of the NDPS Act, 1985 for a period of 12 years and also to pay a fine of Rs.1 lakh.

Subsequently, the applicant appealed against the decision, which was admitted and the court stayed the recovery of the fine.

Submissions of the Applicant’s Counsel:

1. Applicant had been wrongly convicted by the Special Court under section 15(c) of the Act since there is no direct evidence and there are several contradictions in the statements of the prosecution witnesses which were not considered properly by the Special Court.
2. No reasons have been assigned by the Special Court for imposing punishment on the applicant beyond the minimum period of 10 years as mandated by Section 32-B of the Act
3. There is no possibility of the Appeal being heard in the near future and there is every danger of the Appeal becoming infructuous if the applicant is denied benefit of suspension of rest of his sentence.
4. Such relief can be granted in view of the decision of the Division Bench of this Court in Daler Singh vs. State of Punjab 2007(1) RCR (Criminal) 316, Full Bench of this Court in Dalip Singh alias Deepa vs. State of Punjab 2010 (2) RCR (Criminal) 566, Mangat Rai vs. State of Punjab, Bhola Singh and others vs. State of Punjab, Sandeep Kumar vs. State of Punjab, Balbir Singh vs. State of Punjab and Raghvir Singh vs. State of Punjab.
5. The Applicant also has a right to speedy trial under Article 21 of the Constitution of India which would also extend to the speedy hearing of the Appeal against his conviction by this Court, and once that is not possible, he ought to be granted relief of suspension of sentence.

Submissions of the Respondent’s Counsel:

Through a written reply, the Respondent opposed the grant of relief of suspension of sentence to the Applicant and contended the following:

1. The seizure in the instant case is of 15 plastic bags of poppy straw of total weight around 600 kilograms. Without any valid permit of licence, the applicant and another were carrying it in a car container truck and were caught red handed by the DRI Officers. They also gave voluntary statements that they were knowingly trafficking the said illegally narcotic product. Therefore, the evidence on record justified their conviction by the Special Court
2. Reliance was placed upon the judgement of the Supreme Court in Budhiyarin Bai vs. State of Chhattisgarh 2022 (4) RCR (Criminal) 339 where it was held that no leniency should be shown to accused persons who are found guilty under the NDPS Act and in other cases it has held that period of custody undergone cannot be a criterion to suspend the sentence and grant bail.
3. In view of the stringent provision of Section 37 of the Act, mere passage of time cannot be a reason for suspension of sentence.

Counsel for the respondent relied on the decision in Rafiq Qureshi vs. Narcotic Control Bureau, Eastern Zonal Unit 2019 (6) SCC 492 and contended that possession of narcotic drugs much higher than commercial quantity warrants imposition of more than minimum punishment under the Act.

Judgments referred to / Relied upon by the Bench and their analysis:

In Daler Singh's case the right to speedy trial/hearing of an appeal against conviction under the NDPS Act is conferred by Article 21 of the Constitution of India. The court discussed guidelines laid down in the judgement and reiterated that if there is a delay in disposing of an appeal, the sentence may be suspended.

Further referring to other judgments that were cited by the counsel for the applicant the bench observed that though the accused was convicted for possessing a large amount of drugs and was sentenced to more than 10 years in prison, the court did not give any special reasons for the longer sentence as required by law, and as a result, the accused was granted relief from the sentence suspension after serving more than 4 years, including 2 years after conviction.

Referring to Rafiq Qureshi, the bench made noting of the Supreme Court decision thatIn an appeal against a conviction under the NDPS Act, a higher sentence based on the quantity of substance is valid, even if the court did not consider the factors mentioned in Section 32-B. Similar view has been expressed in Gurdev Singh vs. State of Punjab 2021(6) SCC 558, however that was also a case where the Supreme Court considered the correctness of a judgement in a criminal appeal rendered by the High Court under the Act.

In Harmesh Singh vs. Intelligence Officer the court ruled that an accused has the right to a speedy trial and appeal, as guaranteed by Article 21 of the Indian Constitution, and this principle cannot be ignored even in cases under the Act. If the delay is not the accused's fault and they have already served a substantial period of custody, they may be granted bail or have their sentence suspended pending appeal. This decision was based on various previous court rulings, including A.R. Antulay and others vs.R.S. Naik and another 1992(2) RCR (Criminal) 634 (SC) and Smt. Akhtari Bi vs. State of M.P. 2001(RCR) Criminal 302 (SC).

In Tofan Singh vs. State of Tamilnadu (2021) 4 SCC 1, the Supreme Court of India held that the Information Technology Act has to be interpreted keeping in mind Article 21 of the Constitution and in harmony with the fundamental rights it guarantees. The court also ruled that statements made by accused individuals under section 67 of the Act are not admissible as evidence.

In Rama Murthy v. State of Karnataka (1997) 2 SCC 642 the Supreme Court noticed that overcrowding contributes to a greater risk of disease, higher noise levels, surveillance difficulties, which increase the danger level. This apart, life is more difficult for inmates, and work more onerous for staff, when prisoners are in over capacity.

Judgement:

The bench noted that the applicant had been found guilty in accordance with Section 15(c) of the Act and given a sentence of 12 years in prison and a fine, and that his appeal was still pending before this Court and that there was no likelihood that it would be heard soon. The bench also noted that he had previously served five and a half years in detention, including more than two years of post-conviction custody.

Referring to the information supplied by the Director General of Prisons, Haryana and the Office of the Additional DGP (Prisons), Punjab, Chandigarh, the bench stated, "The information supplied indicates that in both the States the number of inmates in prisons is far in excess of the capacity of most prisons. There are substantial numbers of undertrial prisoners including those facing trial under the NDPS Act."

Noting this as “an additional factor", the bench further stated, "which is also necessary to be considered at this point of time while considering whether or not to grant relief of suspension of sentence to convicts under the NDPS Act in addition to factors mentioned in various judgments of this Court and the Supreme Court. This has drawn attention of the Supreme Court in several cases."

In view of this additional factor, the bench was of the considered opinion that, "the norm of undergoing minimum mandatory period of custody of 6 years for consideration of grant of relief of suspension of sentence in cases where there is conscious possession of commercial quantity of contraband laid down in the decision of Daler Singh (1 supra) is liable to slightly relaxed by 6 months while maintaining the minimum custody of 15 months after conviction."

Allowing the application the bench held, "Since in the instant case the applicant has undergone 5 and a half years of total custody and more than 2 years of custody after conviction, and since the applicant will anyway serve the sentence imposed by the Special Court and undergo the full period of custody if the appeal is dismissed, without expressing any opinion on the merits of the contentions of the parties in the Appeal, this application is allowed and the rest of the sentence imposed on the applicant by the Judge, Special Court, is suspended subject to the applicant furnishing bail bonds/surety bonds to the satisfaction of Duty Magistrate/Chief Judicial Magistrate concerned."

Case Title: Talim Khan vs. Intelligence Officer CRM-44634-2021 in CRA-D-932-2019

Citation: 2023 LiveLaw (PH) 45

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