IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 16-02 -2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL.M.P.No.379 of 2007 in CRIMINAL Appeal No.685 of 2004 K.V.Ramasamy ... Petitioner -vs- The State of Tamil Nadu, rep.by Superintendent of Customs, Preventive Unit/Salem, 566, Sankar Nagar, Salem 636 007 ... Respondent Prayer: This Criminal Miscellaneous Petition has been filed under Section 389 (1) of the Code of Criminal Procedure praying to suspend the sentence of 10 years Rigorous imprisonment imposed on the petitioner in C.C.No.43 of 2003 on the file of Additional District and Sessions Judge-cum-Special Court for Essential Commodities, Coimbatore and enlarge the petitioner on bail, pending disposal of the Criminal Appeal No.685 of 2004. For petitioner : Mr.R.Gandhi, Senior Counsel For respondents : Mr.R.Dhanapal Raj Spl.Public Prosecutor for Customs. ***** ORDER
*****
The petitioner has filed this miscellaneous petition praying to suspend the sentence of 10 years Rigorous imprisonment imposed on him in C.C.No.43 of 2003 on the file of Additional District and Sessions Judge-cum-Special Court for Essential Commodities, Coimbatore and enlarge him on bail, pending disposal of the Criminal Appeal No.685 of 2004.
2.The trial Court after thoroughly narrating, considering and analysing the facts and merits of the case, reached a conclusion that the petitioner is guilty of the charges framed.
3.The factual matrix of the case goes thus:-
On 23.10.2002, at about 10.30 a.m, P.W.2, the Superintendent of Customs Preventive Unit, who is empowered to conduct search and seizure as per provisions, on a tip-off, conducted search in the presence of two independent witnesses and found ganja, which was spread in the petitioners bed room for drying and seized the same. It was recovered under a cover of mahazar. It was totally weighing 22 Kgs. On chemical analysis, it was reported that the contraband was ganja.
4.Earlier the petitioner moved this Court for identical relief in Criminal M.P.Nos.2215 and 2216 of 2005 in C.A.No.685 of 2004 and the same suffered dismissal, since the fine was not paid, by means of order dated 11.04.2005. Thereafter, the petitioner paid fine of Rs.1,00,000/- (Rupees One Lakh Only) before the trial Court on 22.06.2007 and produced the receipt therefor.
5.Learned Senior Counsel Mr.R.Gandhi appearing on behalf of the petitioner would vehemently contend that since the petitioner has paid the fine and he being a senior citizen, he has to get suspension of sentence. It is his further argument that a reading of the judgment of the trial Court would show that the petitioner has got very good case in the appeal and it could easily be established that he is not guilty and that there is no likelihood for him to commit such offence in future.
6.Repelling the above said contentions, the learned Standing Counsel for the respondent Mr.R.Danapalraj would submit that even though part of Section 32 A has been held as unconstitutional by the Hon’ble Supreme Court, since the petitioner’s case could not be brought within the purview of Section 37 of NDPS Act, no suspension of sentence can be granted.
7.In support of his contention, the learned Senior Counsel garnered support from a decision of the Hon’ble Supreme Court of India reported in (2004) 13 Supreme Court Cases, Mansingh Vs. Union of India, wherein it is held that since the accused had undergone more than seven years of imprisonment and in case of his being paid the fine amount imposed by the trial court, execution of sentence of imprisonment shall remain suspended. In the above said case, the learned counsel for the appellant before the Supreme Court had placed reliance upon a decision reported in (2000) 8 SCC Page 437, Dadu Vs. State of Maharashtra. In the present case on hand, the petitioner has served three years and ten months of sentence imposed by the trial Court . Further, in the case on hand, the contraband was above the commercial quantity viz., 22 Kgs of kanja. Hence, the petitioner cannot take recourse to the said decision.
8.Learned Standing Counsel for the respondent would place reliance upon a decision of the Hon’ble Supreme Court, reported in 2004 (2) Supreme 689 (Union of India Vs. Mahaboob Alam), in which an earlier decision of the Court in Dadu Didier Vs. Chief Secretary, Union Territory of Goa reported in (1990) 1 SCC Page 95 has been referred which is as follows:-
8.In the case of Dadu alias Tulsidas etc V. State of Maharashtra (2000 8 SCC 437), 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 was further observed that following the above dangerous stand arising out of narcotics trend, though the Court has power of granting the bail in support of the language of Section 32 A that the same should be done only and strictly subject to the conditions spelt out in Section 37 of the Act. He also cited a decision of this Court in 1994(2) Law Weekly Page 549, S.A.Jamal Shah Vs. Intelligence Officer, Directorate of Revenue, Intelligence Tiruchirapalli, wherein the import of Section 37 of NDPS Act as discussed by the Supreme Court has been referred to and principles therein have been followed. In the result, this Court has concluded that there is no justification for the suspension of sentence as far his release on bail, pending disposal of appeal.
9.In J.T.2001-7SC 560 State of Madhya Pradesh Vs. Kajad, the Supreme Court has enunciated legal principal in this subject as regards the scheme of NDPS Act thus:-
6.In Maktool Singh Vs. State of Punjab [JT 1999 (2) SC 176 = 1999 (3) SCC 321] this Court considered the scope of Section 37 along with the scheme of the Act and held:
The only offences exempted from the purview of the aforesaid rigours on the bail provisions are those under Sections 26 and 27 of the Act. The former is punishable upto a maximum imprisonment for three years and the latter upot a maximum implementation for one year. For all other offences, the Courts power to release an accused on bail during the period before conviction has been thus drastically curtailed by providing that if the public prosecutor opposes the bail application, no accused shall be released on bail, unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence.
10.In this context, it is profitable to extract Section 37 of the NTPS Act reads thus:-
Offences to be cognizable and non-bailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 –
(a) every offence punishable under this Act shall be cognizable
(b)no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless
(i)the public prosecutor has been given an opportunity to oppose the application for such release, and
(ii)where the public prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2)The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure. 1973 or any other law for the time being in force, or granting of bail.
11. As per the above said provision, a curtail is imposed on the power of the Court in order to curb the menace of iilicit drug trafficking. It is well settled that liberal approach in the matter of bail under the Act is uncalled for. As per the above said provision, the Court should get satisfaction that reasonable grounds are available to the effect that the accused is not guilty of offence and another principle is that he is not likely to commit any offence, while on bail. Insofar as the first part of the provision is concerned, a thorough reading of the judgment of the trail Court would go to show that the charges have been proved against the accused beyond reasonable doubt and for the present, this Court is unable to get satisfaction in this regard. As for the latter part of provision, since it is established before the trial Court that the appellant was in possession of 22 Kgs of ganja, which is above the commercial quantity limit, it could be presumed that he is likely to commit any offence while on bail. No satisfaction is obtained in this score also.
S.PALANIVELU.J
ssm
10.Following the well settled principles laid down by the Apex Court, observed in this matter, the relief of suspension of sentence could not be granted. The Supreme Court has come down heavily in the matter of suspension of sentences in this regard, violating the provisions of the Act by ignoring mandatory requirements of Section 37 of NDPS Act and the conditions governing the grant of bail under the Code of Criminal Procedure.
11.In the light of the above said observations, it is held that the petitioner is not entitled to get suspension of sentence and the petition has to face dismissal. In fine, the petition is dismissed.
16.02.2008
Index: Yes
Internet: Yes
ssm
To
The Superintendent of Customs,
The State of Tamil Nadu,
Preventive Unit/Salem,
566, Sankar Nagar,
Salem 636 007
order in
Crl.M.P.No.379 of 2007in
Crl.A.No.685 of 2004