Dr Dhananjaya Y Chandrachud, J
2 This appeal arises from a judgment of a learned Single Judge of the High Court of
Delhi dated 28 July 2020, by which the application filed by the respondent
seeking suspension of sentence under Section 389(1) of the Code of Criminal
Procedure 19731 has been allowed.
3 The respondent has been convicted of offences punishable under Sections 23(c)
and 25A of the Narcotic Drugs and Psychotropic Substances Act 19852. He has
been sentenced to suffer rigorous imprisonment for ten years in respect of the
Sanjay Kumar
1 “CrPC” 2 “NDPS Act”
4 Briefly stated, on 2 December 2015, the IO of the Narcotics Control Bureau, Delhi
Zonal Unit received a phone call from DHL Courier that two parcels were lying in
the office and were suspected to contain narcotic drugs. Accordingly, a team of
the Narcotics Control Bureau, Delhi Zonal Unit, reached the office of DHL. Two
parcels were seized. The parcels were found to contain 325 grams of heroin and
390 grams of pseudoephedrine. The parcels were booked to a foreign
destination, at the behest of a foreign national, by the co-accused who was an
employee of the respondent. The respondent himself is a proprietor of the
courier agency which had accepted the parcels initially for booking from the
foreign national.
5 The Special Judge, after considering the entirety of the evidence on the record,
came to the conclusion that the offence stood established as against the
respondent, but the benefit of doubt was granted to the co-accused on the
ground that he was only an employee who was acting at the behest of the
respondent. An appeal has been filed before the High Court of Delhi by the
respondent. While considering the application for suspending the sentence, the
learned Single Judge recorded the following submissions of the respondent in
paragraph 2 of the impugned order:
“2. Learned counsel for the appellant submits that out of the
total sentence of 10 years awarded to the appellant by the Trial
Court, the appellant has already undergone a period of about 4
years and 4 months. He has taken the Court through the
records to show that though the appellant who was owner of
the courier company has been convicted and the employee of
the company who had received the parcels, has been acquitted
on the same set of evidence. It is further submitted that no
investigation was made to arrest the consignor. He also submits
that since the appeal is likely to take some time to come up for
final hearing, no useful purpose would be served in keeping the
appellant in jail till such time and prays that the appellant's
sentence may be suspended during the pendency of the
appeal.”
6 The application was opposed on behalf of the Narcotics Control Bureau by the
Senior Standing Counsel, who appeared to oppose the suspension of sentence.
The High Court, while passing an order of suspension of sentence, indicated its
reasons in paragraph 4 of the order, which reads as follows:
“4. Looking into the facts and circumstances of the case and
the period undergone by the appellant and the fact that the
appeal is not likely to be taken for hearing in near future on
account of disruption caused by COVID-19 pandemic, the
application is allowed and the sentence of the appellant is
suspended during the pendency of the appeal on his furnishing
a personal bond in the sum of Rs.50,000/- with one surety of
the like amount to the satisfaction of the concerned Jail
Superintendent/Duty Magistrate, subject to the following
further conditions:
(i) The appellant will not leave NCT of Delhi without prior
permission of the Court.
(ii) The appellant shall appear before the Court as and when
the appeal is taken up for final hearing.
(iii) In case of change of address, the appellant shall
promptly inform the same to the concerned IO as well as to the
Court.”
7 Mr Aman Lekhi, learned Additional Solicitor General appearing on behalf of the
appellant, submits that the provisions of Section 37 of the NDPS Act contain
stringent requirements before an application for bail can be allowed. Learned
Additional Solicitor General submits that one of the requirements is that “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”. It was urged that in a case such as a present where the conviction is
under the provisions of Sections 23(c) and 25A of the NDPS Act, the requirement
of Section 37 that “there are reasonable grounds for believing that he is not
guilty of such offence” must apply a fortiori because the trial Court after
conducting a trial has, on the basis of the evidence which is adduced, come to
the conclusion that the offence has been established. In the present case, it was
urged that absolutely no reasons have been indicated by the learned Single
Judge of the High Court for granting bail, save and except for a vague reference
to the “facts and circumstances” of the case, the period undergone by the
respondent and the fact that the appeal was not likely to be taken for hearing in
the near future due to the disruption caused by the Covid-19 pandemic.
8 On the other hand, Ms Nidhi, learned counsel appearing through the Supreme
Court Legal Services Committee to represent the respondent, has adverted to
the judgment of the Trial Judge and submitted that prima facie the involvement
of the respondent would not stand established. That apart, it has been
submitted that the respondent has undergone about four years and four months
of imprisonment and the High Court having exercised its discretion to grant bail,
a case for interference has not been made out.
9 While considering the rival submissions, we must at the outset advert to the
manner in which the learned Single Judge of the High Court has dealt with the
application for suspension of sentence under Section 389(1) of CrPC. The
offence of which the respondent has been convicted by the Special Judge arises
out of the provisions of Sections 23(c) and 25A 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 respondent 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 grams of heroin and 390
grams of pseudoephedrine. Section 37 of the NDPS Act stipulates that no
person accused of an offence punishable for offences under Section 19 or
Section 24 or Section 27A and also for 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) of 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) of
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. At this stage, we will refer to the decision of a two-Judge Bench of
this Court in Preet Pal Singh v State of Uttar Pradesh3 where Justice Indira
Banerjee, speaking for the Court, observed as follows:
“35. There is a difference between grant of bail
under Section 439 of the CrPC in case of pre-trial arrest
and suspension of sentence under Section 389 of the
CrPC and grant of bail, post-conviction. In the earlier
case there may be presumption of innocence, which is a
fundamental postulate of criminal jurisprudence, and the
courts may be liberal, depending on the facts and
circumstances of the case, on the principle that bail is
the rule and jail is an exception, as held by this Court
in Dataram Singh v. State of U.P. and Anr. (supra).
However, in case of post- conviction bail, by suspension
of operation of the sentence, there is a finding of guilt
and the question of presumption of innocence does not
arise. Nor is the principle of bail being the rule and jail
an exception attracted, once there is conviction upon
trial. Rather, the Court considering an application for
suspension of sentence and grant of bail, is to consider
the prima facie merits of the appeal, coupled with other
factors. There should be strong compelling reasons for
grant of bail, notwithstanding an order of conviction, by
suspension of sentence, and this strong and compelling
reason must be recorded in the order granting bail, as
mandated in Section 389(1) of the Cr.P.C.”
10 The principles which must guide the grant of bail in a case under the NDPS Act
have been reiterated in several decisions of this Court and we may refer to the
decision in State of Kerala v Rajesh4. The High Court unfortunately, in the
present case, has not applied its mind to the governing provisions of the NDPS
3 (2020) 8 SCC 645 4 (2020) 12 SCC 122
Act. On the basis of the material which emerged before the learned Special
Judge and which forms the basis of the order of conviction, we are of the view
that no case for suspension of sentence under Section 389(1) of CrPC was
established. The order granting suspension of sentence under Section 389(1) of
CrPC is unsustainable and would accordingly have to be set aside.
11 While concluding, however, we hasten to add that our observations are confined
to the question as to whether a case for suspension of sentence was made out
and shall not affect the merits of the case when the appeal comes up for hearing
before the High Court.
12 For the above reasons, we allow the appeal. The judgment and order of the High
Court dated 28 July 2020 suspending the sentence of the respondent shall stand
set aside and the respondent shall surrender forthwith to the sentence.
However, having regard to the fact that the respondent has undergone four
years and four months of imprisonment, we would request the High Court to
take up the appeal for hearing and final disposal upon the respondent’s
surrendering to the sentence and dispose it of by the end of 2021.
[Dr Dhananjaya Y Chandrachud]
[M R Shah]
New Delhi; March 02, 2021 -S-
Revised ITEM NO.8 Court 6 (Video Conferencing) SECTION II-C
Petition(s) for Special Leave to Appeal (Crl.) No(s).670/2021
(Arising out of impugned final judgment and order dated 28-07-2020 in CRLMB No. 7540/2020 passed by the High Court of Delhi at New Delhi)
LOKESH CHADHA Respondent(s)
(WITH IA No. 9362/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)
Date : 02-03-2021 This petition was called on for hearing today.
CORAM :
For Petitioner(s) Mr. Aman Lekhi, ASG
Mr. Bharat Singh, Adv.
Mr. B V Balaram Das, AOR
Mr. Divyansh H Rathi, Adv.
Mr. Anirudh Bakhru, Adv.
For Respondent(s) Ms. Nidhi, AOR
Mr. Jaydip Pati, Adv.
UPON hearing the counsel the Court made the following
2 For the reasons recorded in the signed reportable judgment, we allow the
appeal. The judgment and order of the High Court dated 28 July 2020
suspending the sentence of the respondent shall stand set aside and the
respondent shall surrender forthwith to the sentence. However, having regard to
the fact that the respondent has undergone four years and four months of
imprisonment, we would request the High Court to take up the appeal for
hearing and final disposal upon the respondent’s surrendering to the sentence
and dispose it of by the end of 2021.
(Signed reportable judgment is placed on the file)
ITEM NO.8 Court 6 (Video Conferencing) SECTION II-C
Petition(s) for Special Leave to Appeal (Crl.) No(s).670/2021
(Arising out of impugned final judgment and order dated 28-07-2020 in CRLMB No. 7540/2020 passed by the High Court of Delhi at New Delhi)
NARCOTICS CONTROL BUREAU Petitioner(s)
LOKESH CHADHA Respondent(s)
(WITH IA No. 9362/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)
Date : 02-03-2021 This petition was called on for hearing today.
CORAM :
For Petitioner(s) Mr. Aman Lekhi, ASG
Mr. Bharat Singh, Adv.
Mr. B V Balaram Das, AOR
Mr. Divyansh H Rathi, Adv.
Mr. Anirudh Bakhru, Adv.
For Respondent(s) Ms. Nidhi, AOR
Mr. Jaydip Pati, Adv.
UPON hearing the counsel the Court made the following
2 For the reasons recorded in the signed reportable judgment, we allow the
appeal. The judgment and order of the High Court dated 28 July 2020
suspending the sentence of the respondent shall stand set aside and the
respondent shall surrender forthwith to the sentence. However, having regard to
the fact that the respondent has undergone four years and four months of
imprisonment, we would request the High Court to take up the appeal for
hearing and final disposal upon the respondent’s surrendering to the sentence
and dispose it of by the end of 2021.
(Signed reportable judgment is placed on the file)