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 17-01-2025Heard 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 2/21 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 3/21 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 4/21 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. Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 5/21
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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 6/21 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 7/21 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. Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 8/21
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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 9/21 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 10/21 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 11/21 be after their seizure, by such officer and in such manner as 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 12/21 subsection (2) by the concerned officer to the Magistrate or 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 13/21 procedure of spot searches and seizures in compliance with 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 14/21 nature. Such provision specifying multiple alternative 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 15/21 of the seized contraband substances on the spot of recovery 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:
Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 16/21
(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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 17/21 itself would neither vitiate the trial nor would entitle the 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 18/21 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 Patna High Court CR. APP (DB) No.482 of 2024(10) dt.17-01-2025 19/21 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 20/21 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 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