"Entire Sentence Would Be Undergone By The Time Appeal Is Heard" Supreme Court Suspends Sentence Of Man Charged For Recovery Of Joint Possession Of 1kg Heroin

Considering that in all probability the entire sentence would be undergone by the time appeal is heard, the Supreme Court recently suspended the sentence of a man who was charged for recovery of joint possession of 1kg heroin.

While granting bail, the bench of Justices DY Chandrachud and AS Bopanna opined that the appellant had undergone 8 years and 5 days of custody out of the total sentence of 10 years and that the appeal was unlikely to be heard early.

"In the circumstances, particularly, since the appellant has undergone 8 years out of ten years of the total sentence which has been imposed on him, we are of the view that a fit and proper case has been made out for the suspension of the sentence under Section 389 CrPC," the Top Court observed.

Factual Background

On 18/19th November 2013, an FIR was lodged against the appellant and two other co accused for offences punishable under Sections 21, 29, 61 and 85 of the Narcotic Drugs and Psychotropic Substances Act 1985. The appellant and another co accused were charged for joint possession of 1kg of heroin recovered from a hotel room and for conspiracy.

Special Judge, NDPS had acquitted the appellant and the co accused for the charge of joint possession u/s 21(c) of the NDPS Act but the the appellant was convicted under Section 29 of the NDPS Act and was sentenced to rigorous imprisonment for ten years and a fine of Rs 1,00,000 with a default sentence.

The appellant had approached the Delhi High Court for suspension of sentence but on May 18, 2021 the High Court declined to allow a suspension of sentence on the ground that the appellant had not completed fifteen months in Jail after the order of conviction was passed. The High Court had noted that, as a matter of fact, according to the nominal roll dated 18 February 2021, he had undergone seven years and two months in custody.

The High Court had relied on the judgment of the Punjab and Haryana High Court in Daler Singh v State of Punjab (2006) SCC Online P&H 1591. Reliance was also placed on Delhi High Court's judgement in Mohd Arif alias Guddu v State NCT of Delhi Crl A 293 of 2017, order dated 19 May 2020 in which it was observed that, "Where the convict is sentenced for ten years for having in his conscious possession a commercial quantity of the contraband, he shall be entitled to bail after undergoing a total sentence of four years which must include at least fifteen months after conviction."

Advocate Tanya Agarwal appeared for the Appellant and Additional Solicitor General Sanjay Jain with Advocate Praveena Gautam, appeared for the State.

Additional Solicitor General had submitted that the Top Court could consider expediting the hearing of the appeal but not consider the prayer for suspension of sentence since the conviction was under the NDPS Act and the offence was serious.

The bench in this regards observed that although it appreciated ASG's submission that offences under the NDPS Act are of serious nature and the case was at the post conviction stage but it could not be unmindful of the fact that appellant has undergone 8 years out of the total sentence of 10 years.

"The appeal is unlikely to be heard early. In all probability, the entire sentence would have been undergone by the time the appeal is heard," Court further added.

With regards to the decisions based on which the High Court had declined granting suspension of sentence, the Court observed that,

"The decisions on the basis of which the High Court of Delhi has declined to grant suspension of sentence, are, at the highest, a broad guideline and cannot be placed on the same pedestal as a statutory interdict. With the pendency of the work in the High Court, it may not be feasible to expedite the disposal of the appeal within a short period."

While allowing the appeal and setting aside the High Court's judgement, the bench said that the appellant's sentence shall remain suspended u/s 389 CrPC subject to the terms and conditions imposed by the Special Judge, NDPS, Patiala House Courts. Directions were also issued to the appellant to cooperate for expeditious disposal of the appeal and not apply for adjournment when the matter is taken up.

Case Title: Mosa Koya KP v. State (NCT) of Delhi| Criminal Appeal No 1562 of 2021

Coram: Justices DY Chandrachud and AS Bopanna

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