Patna High Court – Orders
Chen Singh @ Chain Singh vs The Union Of India Through N.C.B. on 17 January, 2025
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.482 of 2024
Arising Out of PS. Case No.-19 Year-2018 Thana- N.C.B (GOVERNMENT OFFICIAL)
District- Patna
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1. Chen Singh @ Chain Singh Son of Gopal Singh At Ward No.- 14, Jatpura
Akodia, Tehsil Shujalpur, P.S.- Akodia, District - Shajapur, Madhya Pradesh.
2. Shambar Khan Son of Jogi Khan R/O Pind Khurd, Dilwargarh, P.S.-
Ahmedgarh, Kup Kalan, District - Sangrur, Punjab.
... ... Appellant/s
Versus
The Union of India through N.C.B. New Delhi
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Manoj Singh, Advocate
For U.O.I. (NCB) : Mr. Satyabir Bharti, Senior Panel Counsel
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
10 17-01-2025
Heard Mr. Manoj Singh, learned counsel for the
appellants and Mr. Satyabir Bharti, learned Senior Panel
Counsel for the Union of India (N.C.B.).
2. The present appeal has been filed under
Sections- 374(2) and 389(1) of the Code of Criminal Procedure,
1973 against the judgment of conviction dated 07.03.2024 and
order of sentence dated 19.03.2024 passed by learned Exclusive
Special (N.D.P.S. Act) Court No.-1, Patna in Special (NDPS
ACT) Case No. 32 of 2018, whereby both the
appellants/convicts have been convicted for the offences
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punishable under Sections-20(b)(ii)(C), 25 and 29 of N.D.P.S.
Act and have been sentenced to undergo R.I. for 13 years and
fine of Rs. 1,00,000/- for the offence punishable under Section-
20(b)(ii)(C), 25 and 29 of the N.D.P.S. Act each and, in default
of payment of fine, both the appellants have been directed to
undergo further R.I. for 6 months each. The sentences have
been directed to run concurrently.
3. Learned counsel for the appellants submits that
the present appeal has been admitted by this Court and the
appellants pray for suspension of sentence and for grant of bail
till final disposal of the appeal.
4. Learned counsel referred the deposition given by
the prosecution-witnesses and thereafter submitted that the
prosecution has failed to prove the case against the appellants,
despite which the trial court has convicted the appellants. It is
further submitted that mandatory provision contained in
Section-52A of the Narcotics Drugs and Psychotropic
Substances Act (in short, N.D.P.S. Act) has not been complied
with, despite which the trial court has passed the impugned
judgment of conviction and order of sentence. At this stage,
learned counsel referred to separate compilation supplied by
him. It is submitted that the concerned Intelligence Officer has
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written that it has been learnt through secret and reliable source
on 06.04.2018 that a huge quantity of Ganza is being
transported from Agartala, Tripura to Bihar through two trucks
bearing Regn. No. PB13-AW-7225 and MP09-HH-1437
respectively. The route which will be followed by the two trucks
and the destination is not confirmed. At this stage, learned
counsel referred the deposition given by P.W. 1 wherein the said
witness has deposed in examination-in-chief that on 06.04.2018
secret information was received that aforesaid two trucks would
reach Fatuha via Kishanganj, Purnea with the consignment.
Learned counsel, therefore, contended that, initially, the
destination was not known, despite which P.W. 1 has, during the
course of deposition, submitted the aforesaid aspect.
4.1. Learned counsel would further submit that in
the notice issued under Section-50 of the N.D.P.S. Act, two
witnesses, namely Basu Yadav and Keshav Yadav have signed.
That means, the aforesaid witnesses were present at the place of
interception. However, at this stage, learned counsel has referred
para-7 of the deposition of P.W. 1 wherein the said witness has
admitted that at the place of interception, independent witnesses
were not present. Learned counsel, therefore, submits that there
are contradictions and inconsistencies in the story of the
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prosecution.
5. Learned counsel further submits that the
investigating agency did not comply with the mandatory
provisions contained in Section-52A of N.D.P.S. Act at the time
of seizure because such seizure was not made in presence of a
Magistrate and, therefore, on the ground of non-compliance
with the mandatory provision, the trial court ought to have
acquitted the appellants herein.
6. Learned counsel would further submit that on
interception the total weight of Ganza which was recovered
from the two trucks was shown as 1029.500 k.gs., however, in
the report prepared under Section-52A of N.D.P.S. Act, the total
weight was short of almost 100 k.gs. and was found to be
933.700 k.gs. only. Learned counsel, therefore, urged that there
is discrepancy with regard to the weight of the seized Ganza
and, therefore, the benefit of the same be given to the appellants.
7. It is further submitted that the appellants are in
custody since 10.04.2018, i.e. for approximately six years and
nine months. That means, the appellants have undergone more
than half of the sentence imposed and, therefore, on this ground
also, appellants be released on bail as the present appeal is of
the year 2024, which is not likely to be heard in near future.
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8. On the other hand, learned Sr. Advocate Mr.
Satyabir Bharti appearing for the respondent Union of India
(N.C.B.) submits that from para-2 of deposition of P.W.2, it is
revealed that in his initial report submitted to the
Superintendent, P.W. 2, when he referred to the fact that the
destination was not known, he meant that the place where the
Ganza was to be delivered and the person to whom it was to be
delivered was not known. However, from para-2 of the
deposition of the said witness, he has categorically stated that
N.C.B. Team followed the two trucks so that they could
ascertain the destination and the recipient of the contraband
consignment.
9. Learned Sr. Advocate for the respondent Union
of India further submits that P.W. 2 in his deposition at
paragraph-4 deposed that on reaching the N.C.B. office, Patna
they contacted two persons who were crossing the office who
disclosed their names as Basu Yadav and Keshav Yadav. They
agreed to be a witness to the search and seizure. Thereafter, in
presence of both the present witnesses and the Superintendent,
the appellants were searched and from their possession no
incriminating material was found. Thus, since in presence of
independent witnesses appellants were searched in person, in
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the notice issued under Section-50 of the N.D.P.S. Act their
names were mentioned in the column of witnesses. Further, P.W.
3 in whose presence the appellants were searched in person had
also deposed that the two intercepted persons (appellants) were
searched in his presence, however, no incriminating documents
or items were recovered from their personal possession. Learned
Sr. Advocate, therefore, urged that there is no discrepancy in the
notice issued under Section-50 of the N.D.P.S. Act.
10. Learned Sr. Counsel for the respondent would
also submit that the contention taken by the learned counsel for
the appellants about violation of Section-52A of N.D.P.S. Act on
the ground that sampling has not been done in presence of a
Magistrate is misconceived. Learned Sr. Counsel placed reliance
upon the order passed by Hon’ble Supreme Court in the case of
Narcotics Control Bureau Vs. Kashif, rendered in Cr. Appeal
No. 5544 of 2024 wherein the Hon’ble Supreme Court has
considered the scope and ambit as also the consequence of non-
compliance or belated compliance of the provisions of Section
52A of N.D.P.S. Act. Learned Sr. Counsel has more particularly
placed reliance upon para Nos. 21 to 24, 31 to 35 and 39 of the
said decision.
11. Learned Sr. Advocate for the respondent Union
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of India (N.C.B.) would further submit that report under
Section-52A of N.D.P.S. Act was prepared on 05.08.2022, i.e.
after four and half years of the seizure of contraband Ganza.
Thus, due to passage of time, there is a loss of moisture and it
dried up, resulting into loss of weight and, therefore, it cannot
be termed as discrepancy in the weight of the Ganza and the
report prepared under Section-52A of N.D.P.S. Act.
12. Lastly, it is submitted that since commercial
quantity of Ganza has been recovered from the possession of the
appellants, merely because the appellants have completed half
of the sentence imposed, they cannot be released on bail, as
prayed for. Learned Sr. Counsel referred to the provisions
contained in Section-37 of N.D.P.S. Act and submitted that
during the pre-trial stage bail can only be granted when
reasonable grounds exist for believing that the accused is not
guilty for such an offence, however, once the accused has been
convicted, the said provision is applicable with more force. In
support of the said contention, learned Sr. Counsel has placed
reliance upon the decision rendered by the Hon’ble Supreme
Court in the cases of State (NCT of Delhi) Narcotics Control
Vs. Lokesh Chadha, reported in (2021) 5 SCC 724 and Mohd.
Khalik Vs. Union of India, reported in (2021) 16 SCC 820.
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13. We have considered the submissions canvassed
by the learned advocates appearing for the parties, perused the
material placed on record as also the trial court record and also
examined the decisions relied upon by the learned Sr. Counsel
for the respondent Union of India (N.C.B.).
14. Learned counsel for the appellants has tried to
contend that there is discrepancy in the report dated 06.04.2018
given by Intelligence Officer, N.C.B. to the Superintendent with
regard to the destination. However, from deposition given by
P.W.2, more particularly para-2, it would reveal that the N.C.B.
Team followed the two trucks so that they could ascertain the
destination and the recipient of the contraband material. Thus,
the contention raised by learned counsel for the appellants with
regard to the discrepancy with regard to information received
qua the destination is misconceived.
15. Further, learned counsel for the appellants has
tried to contend that in the deposition given by P.W.2, more
particularly para-3, there is a reference that the witnesses were
not available at the place of interception and, therefore, the
appellants were brought to the N.C.B. Office, Patna and
Section-50 notice was signed by two witnesses. However, from
the deposition given by P.W. 2, in paragraph-4, it is revealed that
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the said witness has deposed that on reaching the N.C.B. Office
they contacted two persons who disclosed their names as Basu
Yadav and Keshav Yadav. They agreed to be a witness to the
interception. Thereafter, in presence of both the present
witnesses and the Superintendent, the appellants were searched
and from their possession nothing incriminating was found.
Thus, it appears that in presence of independent witnesses
appellants were searched in person. In the notice issued under
Section-50 of the N.D.P.S. Act, their names were mentioned in
the column of witnesses. The Superintendent, P.W. 3, has also
deposed about the aforesaid aspect. Thus, prima facie, we are of
the view that there is no discrepancy with regard to the notice
issued under Section-50 of N.D.P.S. Act, as contended on behalf
of the appellants.
16. Learned Sr. Counsel for the respondent has
specifically contended that the report under Section-52A of
N.D.P.S. Act was prepared on 05.08.2022, i.e. four and a half
years from seizure of contraband Ganza and because of passage
of time, there was a loss of moisture and it dried up, resulting
into loss of weight. Thus, we are of the view that the aforesaid
possibility cannot be ruled out and merely because there is some
discrepancy in the weight of seized Ganza, at this stage, benefit
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of the same cannot be given to the appellants.
17. In the case of Kasif (supra), recently the
Hon’ble Supreme Court has considered the scope and ambit as
well as the consequence of non-compliance or belated
compliance of provisions contained in Section-52A of N.D.P.S.
Act. The Hon’ble Supreme Court has observed in para Nos. 21
to 24, 31, 32, 34, 35, 36 and 39 as under:
“21. The insertion of Section 52A with the Heading
“Disposal of seized narcotic drugs and psychotropic
substances” along with the insertion of the words “to
provide for the forfeiture of property derived from or used
in, illicit traffic in narcotics drugs and psychotropic
substances, to implement the provisions of International
Conventions on Narcotics Drugs and Psychotropic
Substances”, in the long title of the NDPS Act, by Act 2 of
1989 w.e.f. 29.05.1989, leaves no room of doubt that the
said provision of Section 52A was inserted for an early
disposal of the seized narcotic drugs and psychotropic
substances, as one of the measures required to be taken to
implement the provisions of the International Conventions
on Narcotics Drugs and Psychotropic Substances. The
Heading of Section 52A i.e. Disposal of seized narcotic
drugs and psychotropic substances delineates the object and
reason of the insertion of said provision and such Heading
cannot be underscored. From the bare reading of Section
52A also it is very much discernable that sub-section (1)
thereof empowers the Central Government, having regard to
the hazardous nature, vulnerability to theft, substitution,
constraint of proper storage space or any other relevant
consideration, to specify narcotic drugs, psychotropic
substances for the purpose of their disposal as soon as may
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the Central Government may determine after following the
procedure specified in sub-section (2).
22. Sub-section (2) of Section 52A prescribes the procedure
to be followed by the authorized officers for the disposal of
such contraband narcotics drugs and psychotropic
substances at the pre-trial stage. As per the procedure laid
down in the said sub-section, where any narcotics drug,
psychotropic substance or controlled substances or
conveyances has been seized and forwarded to the officer-
in-charge of the nearest police station or to the officer
empowered under section 53, the concerned officer
authorized as per sub-section (1) has to prepare an inventory
of such drugs or substances in the manner as stated in the
said provision, and then make an application to the
Magistrate for the purpose of (a) certifying the correctness
of the inventory so prepared; or (b) taking, in presence of
such Magistrate, photographs of such drugs, substances or
conveyances and certifying such photographs as true; or (c)
allowing to draw representative samples of such drugs or
substances, in the presence of such Magistrate and
certifying the correctness of any list of samples so drawn.
Sub-section (3) requires that an application made under sub-
section (2), should be allowed by the Magistrate as soon as
may be, and sub-section (4) thereof states that such
inventory, photographs and the list of samples so drawn, if
any, under sub-section (2) and certified by the Magistrate
shall be treated as the primary evidence in respect of the
offence under the Act.
23. As demonstrated above, sub-section (2) of Section 52A
specifies the procedure as contemplated in sub-section (1)
thereof, for the disposal of the seized contraband or
controlled narcotic drugs and psychotropic substances. Any
deviation or delay in making the application under
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the delay on the part of the Magistrate in deciding such
application could at the most be termed as an irregularity
and not an illegality which would nullify or vitiate the entire
case of the prosecution.The jurisprudence as developed by
the courts so far, makes clear distinction between an
“irregular proceeding” and an “illegal proceeding.” While an
irregularity can be remedied, an illegality cannot be. An
irregularity may be overlooked or corrected without
affecting the outcome, whereas an illegality may lead to
nullification of the proceedings. Any breach of procedure of
rule or regulation which may indicate a lapse in procedure,
may be considered as an irregularity, and would not affect
the outcome of legal proceedings but it can not be termed as
an illegality leading to the nullification of the proceedings.
24. Section 52A was inserted only for the purpose of early
disposal of the seized contraband drugs and substances,
considering the hazardous nature, vulnerability to theft,
constraint of proper storage space etc. There cannot be any
two opinions on the issue about the early disposal of the
contraband drugs and substances, more particularly when it
was inserted to implement the provisions of International
Convention on the Narcotics Drugs and Psychotropic
Substances, however delayed compliance or non-
compliance of the said provision by the concerned officer
authorised to make application to the Magistrate could
never be treated as an illegality which would entitle the
accused to be released on bail or claim acquittal in the trial,
when sufficient material is collected by the Investigating
Officer to establish that the Search and Seizure of the
contraband substance was made in due compliance of the
mandatory provisions of the Act.
31. From the above decisions, the position that emerges is
that this Court in catena of decisions, has approved the
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the Standing Orders and the Notifications issued by the
NCB and the Central Government, and upheld the
convictions on being satisfied about the search and seizure
made by the officers as per the provisions of the Act and
being satisfied about the scientific evidence of F.S.L. reports
etc. Even otherwise, in view of the law laid down by the
Constitution Benches in case of Pooran Mal and in case of
Baldev Singh, any procedural illegality in conducting the
search and seizure by itself, would not make the entire
evidence collected thereby inadmissible.The Court would
have to decide the admissibility of evidence in the context
and the manner in which the evidence was collected and
was sought to be used during the course of trial. The
evidence collected during the course of investigation in
legal and proper manner and sought to be used in the course
of trial with regard to the seized contraband substance could
not be simply brushed aside, on the ground of procedural
irregularity if any, committed by the concerned officer
authorised in making application to the Magistrate as
contemplated under Section 52A of the Act.
32. Significantly, the Authorised Officer can make the
application under subsection (2) of Section 52A for three
purposes – (a) for certifying the correctness of the inventory
prepared by him; or (b) taking in presence of such
magistrate, photographs of the seized drugs, substances and
conveyances and certifying such photographs as true; or (c)
allowing to draw representative samples of such drugs or
substances, in the presence of such Magistrate, and
certifying the correctness of any list of samples so drawn.
The use of the conjunction “OR” made in between the three
purposes mentioned therein, itself makes it explicitly clear
that the purposes for which the application could be made
under sub-section (2) are alternative and not cumulative in
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purposes could not be construed as a mandatory provision
muchless its non-compliance fatal to the case of
prosecution.
34. In our opinion reliance placed by the High Court on the
decision of this Court in Union of India Vs. Mohanlal and
Another7, is thoroughly misplaced. In the said case, the
issue of pilferage of contraband was the main issue. The
Court after noticing the non-compliance of the procedure
laid down in the Standing Order No. 1 of 89 dated
13.06.1989, and the possibility of the pilferage of
contraband goods and their return to the market place for
circulation, had appointed an amicus curiae for making a
realistic review of the procedure for search, disposal or
destruction of the narcotics and remedial steps that need to
be taken to plug the loopholes, if any. The Court, thereafter,
had raised the queries with regard to the seizure, storage,
disposal/destruction and also with regard to the judicial
supervision in respect of the seized narcotic drugs and
psychotropic substances. The prime focal in case of
Mohanlal was the disposal of seized contraband goods as
contemplated in Section 52A. Though it held that the
process of drawing samples has to be done in presence of
and under the supervision of the Magistrate, it nowhere held
that non-compliance or delayed compliance of the
procedure prescribed under Section 52A (2) would vitiate
the trial or would entitle the accused to be released on bail.
35. None of the provisions in the Act prohibits sample to be
taken on the spot at the time of seizure, much less Section
52A of the said Act. On the contrary, as per the procedure
laid down in the Standing Orders and Notifications issued
by the NCB and the Central Government before and after
the insertion of Section 52A till the Rules of 2022 were
framed, the concerned officer was required to take samples
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in duplicate in presence of the Panch witnesses and the
person in whose possession the drug or substance
recovered, by drawing a Panchnama. It was only with
regard to the remnant substance, the procedure for disposal
of the said substance was required to be followed as
prescribed in Section 52A.
36. At this stage, we must deal with the recent judgments in
case of Simarnjit vs. State of Punjab, (Criminal Appeal
No.1443/2023), in case of Yusuf @ Asif vs. State (2023
SCC Online SC 1328), and in case of Mohammed Khalid
and Another vs. State of Telangana ((2024) 5 SCC 393) in
which the convictions have been set aside by this Court on
finding non-compliance of Section 52A and relying upon
the observations made in case of Mohanlal. Apart from the
fact that the said cases have been decided on the facts of
each case, none of the judgments has proposed to lay down
any law either with regard to Section 52A or on the issue of
admissibility of any other evidence collected during the
course of trial under the NDPS Act. Therefore, we have
considered the legislative history of Section 52A and other
Statutory Standing Orders as also the judicial
pronouncements, which clearly lead to an inevitable
conclusion that delayed compliance or noncompliance of
Section 52A neither vitiates the trial affecting conviction
nor can be a sole ground to seek bail. In our opinion, the
decisions of Constitution Benches in case of Pooran Mal
and Baldev Singh must take precedence over any
observations made in the judgments made by the benches of
lesser strength, which are made without considering the
scheme, purport and object of the Act and also without
considering the binding precedents.
39. The upshot of the above discussion may be summarized
as under:
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(i) The provisions of NDPS Act are required to be
interpreted keeping in mind the scheme, object and purpose
of the Act; as also the impact on the society as a whole. It
has to be interpreted literally and not liberally, which may
ultimately frustrate the object, purpose and Preamble of the
Act.
(ii) While considering the application for bail, the Court
must bear in mind the provisions of Section 37 of the NDPS
Act which are mandatory in nature. Recording of findings
as mandated in Section 37 is sine qua non is known for
granting bail to the accused involved in the offences under
the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down
the procedure for disposal of seized Narcotic Drugs and
Psychotropic Substances, was to ensure the early disposal of
the seized contraband drugs and substances. It was inserted
in 1989 as one of the measures to implement and to give
effect to the International Conventions on the Narcotic
drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure
as contemplated in sub-section (1) thereof, and any lapse or
delayed compliance thereof would be merely a procedural
irregularity which would neither entitle the accused to be
released on bail nor would vitiate the trial on that ground
alone.
(v) Any procedural irregularity or illegality found to have
been committed in conducting the search and seizure during
the course of investigation or thereafter, would by itself not
make the entire evidence collected during the course of
investigation, inadmissible. The Court would have to
consider all the circumstances and find out whether any
serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by
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accused to be released on bail. The Court will have to
consider other circumstances and the other primary
evidence collected during the course of investigation, as
also the statutory presumption permissible under Section 54
of the NDPS Act.”
18. Thus, from the aforesaid decision rendered by
the Hon’ble Supreme Court, it can be said that Section-52A of
N.D.P.S. Act lays down the procedure as contemplated in Sub-
section-(2) thereof and any lapse or delayed compliance thereof
would be merely procedural irregularity which would neither
entitle the accused to be released on bail nor would vitiate the
trial on that ground alone. It can further be said that any
procedural irregularity or illegality found to have been
committed in conducting the search and seizure, during the
course of investigation or thereafter, would by itself not make
the entire evidence collected during the course of investigation
inadmissible. The Court would have to consider all the
circumstances and find out whether any serious prejudice has
been caused to the accused. It would further reveal that any
lapse or delay in compliance of Section-52A of N.D.P.S. Act by
itself would neither vitiate the trial nor would entitle the accused
to be released on bail and Court will have to consider other
circumstances and other primary evidence collected during the
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course of investigation.
19. Keeping in view the aforesaid decision, if the
contention taken by the learned counsel for the appellants and
the facts of the present case are examined, we are of the view
that the contention taken by learned counsel for the appellants is
misconceived.
20. In the case of Mohd. Khalik (supra), the
Hon’ble Supreme Court has observed in para Nos. 1 to 4 as
under:
1. The application filed by the petitioner for
suspension of the sentence under Section 389(1) of the
Code of Criminal Procedure, 1973 has been dismissed
[Mohd. Khalik v. Union of India, 2020 SCC OnLine Pat
3399] by the High Court. The petitioner has been convicted
of an offence under Sections 21(c), 27-A and 29 of the
NDPS Act and sentenced to suffer imprisonment of 12
years.
2. Mr Shail Kumar Dwivedi, learned counsel
appearing on behalf of the petitioner submits that the
petitioner has undergone nearly seven years’ imprisonment.
Moreover, it has been submitted that by the order of the
High Court dated 21-4-2017 [Mohd. Furkan v. State of
Bihar, 2017 SCC OnLine Pat 3641] , liberty was granted to
the petitioner to apply for bail if the appeal was not heard
within a period of one year. The learned counsel submits
that the appeal has still not been heard and the High Court at
present is hearing appeals of 2010-2011.
3. The charge against the petitioner, which has been
found to be proved, arose out of the alleged recovery of 650
grams of heroin. This is a commercial quantity. Having
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regard to this aspect and all the facts and circumstances of
the case, we find no reason to exercise the jurisdiction under
Article 136 of the Constitution. The special leave petition is
dismissed.
4. In view of the sentence which has been
undergone, we request the High Court to take up the
criminal appeal filed by the petitioner and to dispose it of by
31-12-2021. This is conditional on the petitioner placing a
certified copy of the order of this Court before the Registrar
(Judicial) of the Patna High Court for seeking necessary
administrative directions as to listing. In the event that the
High Court is not able to dispose of the appeal by the time-
limit which has been specified above, the petitioner shall be
at liberty to apply for bail, in which event, the application
shall be disposed of expeditiously. The learned counsel
appearing on behalf of the petitioner submits that the
petitioner shall not apply for adjournment and cooperate
with the High Court in the expeditious disposal of the
appeal upon it being listed.”
21. In the case of State (NCT of Delhi) Narcotics
Control Bureau (supra), the Hon’ble Supreme Court has
observed in para-9 as under:
“9. While considering the rival submissions, we
must at the outset advert to the manner in which the learned
Single Judge [Lokesh Chadha v. State, 2020 SCC OnLine
Del 1723] of the High Court has dealt with the application
for suspension of sentence under Section 389(1) CrPC. The
offence of which the respondent has been convicted by the
Special Judge arises out of the provisions of Sections 23(c)
and 25-A of the NDPS Act. The findings of the learned
Special Judge which have been arrived at after a trial on the
basis of evidence which has been adduced indicate that the
Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025
20/21respondent who was a proprietor of a courier agency was
complicit with a foreign national in the booking of two
parcels which were found to contain 325 gm of heroin and
390 gm of pseudoephedrine. Section 37 of the NDPS Act
stipulates that no person accused of an offence punishable
for the offences under Section 19 or Section 24 or Section
27-A and also for the offences involving a commercial
quantity shall be released on bail, where the Public
Prosecutor opposes the application, unless 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”. Where the trial has
ended in an order of conviction, the High Court, when a
suspension of sentence is sought under Section 389(1)
CrPC, must be duly cognizant of the fact that a finding of
guilt has been arrived at by the trial Judge at the conclusion
of the trial. This is not to say that the High Court is deprived
of its power to suspend the sentence under Section 389(1)
CrPC. The High Court may do so for sufficient reasons
which must have a bearing on the public policy underlying
the incorporation of Section 37 of the NDPS Act.”
22. Keeping in view the aforesaid decision
rendered by the Hon’ble Supreme Court, we are of the view
that, in the present case, commercial quantity of Ganza has been
seized and when the appellants have been convicted for
commission of the offences punishable under Sections-20(b)(ii)
(C), 25 and 29 of N.D.P.S. Act and have been sentenced to
undergo R.I. for 13 years and fine of Rs. 1,00,000/- each, merely
on the ground that the appellants have completed half of the
sentence imposed, they cannot be released on bail.
Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025
21/21
23. In view of the aforesaid discussion, we are of
the view that no case has been made out by the appellants for
grant of bail and for suspension of sentence till final disposal of
the appeal.
24. It is clarified that aforesaid are tentative
observations made by this Court while deciding prayer for
suspension of sentence and for grant of bail.
25. Accordingly, the prayer for grant of bail and for
suspension of sentence till final disposal of the appeal is hereby
rejected.
26. However, looking to the fact that appellants are
in custody since 10.04.2018, office is directed to prepare the
paper-book immediately and thereafter list the present appeal
for hearing in the week commencing from 16.06.2025. If the
appeal is not heard before 31st of August, 2025, it is open for the
appellants to file a separate I.A. under Section-389(1) of The
Code of Criminal Procedure, 1973.
(Vipul M. Pancholi, J)
(Alok Kumar Pandey, J)
K.C.Jha/-
U T