Manipur High Court
- vs - on 16 November, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
SHAMURAILATPAM Digitally signed by
SHAMURAILATPAM SUSHIL SHARMA
SUSHIL SHARMA Date: 2022.11.16 16:59:28 +05'30'
Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC (CRIMINAL APPEAL) CASE NO. 14 OF 2022.
Ref: Criminal Appeal no. 2 of 2021
Sougaijam Robindro Singh, aged about 29 years, S/o
S. Ibotombi Singh of Kakching Wairi Thongam Leikai,
P.O, P.S. & District- Kakching, at present Moreh Super
Market Ward No.2, P.O & P.S. Moreh, District-
Tengnoupal, Manipur-795131.
... Accused Person.
- Versus -
The State of Manipur, through Officer-in-charge NAB
Police Station, Old Nambulane, Imphal West District,
Manipur-795001.
... Respondent
BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioners :: Mr. H. Kenajit, Advocate. For the Respondents :: Mr. Y. Ashang, Addl.PP Date of Hearing and reserving Judgment & Order :: 01.09.2022 Date of Judgment & Order :: 16.11.2022 JUDGMENT AND ORDER (CAV) This petition has been filed by the petitioner/accused no.7 under Section 389 Cr.P.C. read with Section 37 of the ND&PS Act praying allowing him to be enlarged on bail by suspending the operation of the sentence MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 Page |2 order dated 7.12.2020 passed in Special Trial Case No.13 of 2019 on the file of learned Special Judge (ND&PS), Manipur during the pendency of the criminal appeal.
2. Heard Mr. H. Kenajit, learned counsel for the petitioner and Mr. Y. Ashang, the learned Public Prosecutor for the respondent State.
3. Earlier, the brother-in-law of the petitioner/accused no.7 has filed MC (Crl. A) No.20 of 2021 praying for suspending the operation of the impugned conviction dated 27.11.2020 and sentence dated 07.12.2020 and to release him on bail during the pendency of the criminal appeal. By a detailed order, this Court dismissed MC (Crl. A) No.20 of 2021 on 23.5.2022. This is the second application seeking suspension of sentence on behalf the petitioner/accused no.7.
4. In MC (Crl. A) No.20 of 2021, the applicant sought suspension of sentence on the following grounds:
"(a) the prosecution has totally failed to prove the alleged seizure of the contrabands from the possession or at the instance of the aforesaid convicted person MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 Page |3 inasmuch as, the independent witnesses did not corroborate with the statements of the PWs No.1 & 2, who are interested witnesses;
(b) search and seizure was carried out without complying with the mandatory provisions of section 41(2) and 42(1) & (2) of the ND&PS Act, 1985, inasmuch as, the information obtained by the concerned officers about commission of the offence was not taken down in writing and produced before the Trial Court during the course of the Trial."
5. In regard to first ground, by the order dated 23.5.2022 in MC (Crl.A) No.20 of 2021, reported in [2022 (4) GLT (MN) 319], this Court, held as under:
"After careful consideration of the submissions advanced by the learned counsel for the applicant and after careful perusal of the record of the present case, this Court did not find any new ground being made out by the counsel for the applicant for interfering with the impugned judgment and order passed by the learned Special Judge and accordingly, this Court is not inclined to pass any interim order for suspending the impugned judgment and MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 Page |4 order on the first ground raised by the applicant."
6. In so far as the second ground is concerned, this Court held under:
"12. In the present case, as the search and seizure had been carried out under the provisions of section 41 (2) & (3) of the ND7PS Act, there is no question of attracting the provisions of section 42 of the said Act and the contentions advanced by the learned counsel appearing for the applicant about non-compliance with the provisions of section 42 (1) & (2) are misconceived and does not arise at all. In view of the above, this Court does not find any ground for interfering with the impugned judgment and order and for granting bail to the convicted person."
7. The learned counsel for the petitioner/accused no.7 submitted that only two witnesses i.e. P.W.1 and P.W.2 have been relied upon by the learned Special Judge to convict the accused. He would submit that the evidence of P.W.1 is not trustworthy, leave alone of any statements in the cross- examination, the statement given by P.W.1 in the chief- MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 Page |5 examination is self-contradictory with the marked documents and, as such, the prosecution has failed to prove its case of how PW1 came to know the involvement of the accused in the present case.
8. The learned counsel further submitted that the documents relied upon by the prosecution are false and fabricated, as it can be easily seen from the statement given by P.W.1 in his examination-in-chief and also in examining the other marked documents. He would submit that since the petitioner/accused no.7 is languishing in jail since 27.11.2020 and it is going to take time in disposing of the criminal appeal, the petitioner/accused no.7 may be granted bail during the pendency of the criminal appeal by suspending the sentence.
9. By placing reliance upon the decision of the Hon'ble Supreme Court in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappy Yadav and another, (2005) 2 SCC 42, the learned counsel for the petitioner/accused no.7 submitted that the application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail, if there is change in the fact situation. MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 Page |6
10. On the other hand, the learned Public Prosecutor submitted that earlier when the brother-in-law of the petitioner/accused no.7 sought suspension of sentence, this Court dismissed the said petition and that there is no reasonable ground for believing that the petitioner/accused no.7 is not guilty of the offences under which he has been convicted and that there is no ground for believing that he is not likely to commit any offence while on bail.
11. By placing reliance upon the decision of the Hon'ble Supreme Court in the case of State of M.P. v. Kajad, (2001) 7 SCC 673, the learned Public Prosecutor submitted that the second bail application is permissible only if it is under changed circumstances. In the instant case, admittedly, there is no changed circumstances. Thus, a prayer is made to dismiss the instant petition.
12. This Court considered the rival submissions and also perused the materials available on record.
13. It appears that originally, there were 8 accused and accused nos.1 to 5 and 8 are discharged at the time of charge hearing and the petitioner and his wife, who were arrayed as accused nos.6 and 7, have alone faced with the trial MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 Page |7 in Special Trial Case No.13 of 2019. After trial, accused no.6 (wife of the petitioner) was convicted under Section 21(b)/22(c) and accused no.7 was convicted under Section 29 read with Section 21(b)/22(c) of the ND&PS Act by the learned Special Judge, ND&PS, Manipur, Imphal. Accused no.7 was sentenced to undergo 12 years rigorous with fine of Rs.1 lakh for the offence under Section 29 read with Section 21(b)(22(c) of the ND&PS Act.
14. It also appears that while convicting accused nos.6 and 7, the learned Special Judge held that without the aid and support of account No.7, accused No.6, could not have done unlawful activities. The huge quantity of WY tablets and heroin powder was in conscious possession of accused no.6 with the aid, support and conspiracy with accused no.7, who is the husband of accused no.6. The learned Special Judge further held that accused no.7 is liable for abetment and conspiracy for commission of such act to his wife and he is liable to be convicted under Section 29 of the ND & PS Act.
15. The aforesaid finding of the learned Special Judge has been assailed by the petitioner/accused no.7 in the appeal by stating that no contraband was seized at the instance of MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 Page |8 petitioner/accused no.7 and there is no evidence to show that the alleged seizure of contraband has any connection with the petitioner/accused no.7. According to the petitioner, the learned Special Judge erred in convicting the petitioner/accused no.7 by inventing/introducing words "at the instance of accused no.7 (who is the husband of accused no.6)", which has never been stated by any prosecution witnesses. Admittedly, the aforesaid ground raised by the petitioner/accused no.7 has to be considered only at the time of hearing the main appeal. Therefore, that cannot be a ground in considering the suspension of sentence in regard to the petitioner/accused no.7.
16. In Kajad, supra, the Hon'ble Supreme Court held:
"8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous Case No.2052 of 2000 on 5-6-2000 has not been denied by the respondent It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 Page |9 held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169 and various other judgments."
17. In Kalyan Chandra Sarkar, supra, the Hon'ble Supreme Court held:
"20. ..... Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view of the guarantee conferred on a person under Article 21 of the Constitution, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by the courts earlier, including the Apex Court of the country."
18. The petitioner/accused no.7 seeks suspension of sentence mainly on the ground that the evidence of PW1 is not MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 P a g e | 10 trustworthy and that the evidence of PW1 and PW2 is not supported by other independent witnesses. The aforesaid ground has been earlier raised in MC (Crl.A) No.20 of 2021 and this Court declined to accept the said ground and dismissed the petition. The same ground has again been raised in this petition for seeking suspension of sentence and the same cannot be accepted. The aforesaid ground is a matter for consideration in the appeal. Admittedly, no changed circumstance has been shown and set out in the petition by the petitioner/accused no.7.
19. On a perusal of the judgment of the learned Special Judge, this Court finds that the learned Judge has recorded his finding in the following terms:
"The seizure of 5200/WY tablets and 100 grams of heroin powder, including the weight of the three plastic packets and storing thereof shows both the petitioner and his wife have an agreement between themselves to commit such un unlawful act."
20. The aforesaid finding though under challenge in the appeal, till the same is reversed in the appeal, such finding assumes much significance. As stated supra, the judgment of the learned Special Judge records that huge quantity of WY MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 P a g e | 11 tablets and heroin powder and other materials were seized from the possession of accused no.6 at the instance of the petitioner, who is the husband of accused no.6.
21. The law is well settled that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved.
22. It is apposite to point out that the organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 P a g e | 12 eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom has made effective provisions by introducing the ND&PS Act specifying mandatory minimum imprisonment and fine.
23. Considering the above dangerous trend arising out of narcotics trade in the State of Manipur, this Court in a recent decision directed the State Government to constitute a Special Committee for monitoring the drug cases at the State Level with the formation of Sub-Committees at the District Level to weed out drug peddling.
24. In Dadu @ Tulsidas v. State of Maharashtra, (2000) 8 SCC 437, the Hon'ble Supreme Court held that a sentence awarded under the ND&PS Act can be suspended by the appellate Court only and strictly subject to the conditions spelt out in Section 37 of the ND&PS Act.
25. Section 37 of the ND&PS Act provides that the offences under the Act shall be cognizable and non-bailable. It reads:
"37. Offences to be cognizable and non- bailable.- (1) Notwithstanding anything MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 P a g e | 13 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 on granting of bail."
MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 P a g e | 14
26. The learned Public Prosecutor submitted that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.
27. There is no reasonable ground for believing that the petitioner is not guilty of such offence and that he is not likely to commit similar offence while on bail. The learned Special Judge found the petitioner/accused no.7 guilty of the offence under Section 29 read with Section 21(b)/22(c) of the ND&PS Act. In the absence of any reasonable ground, the sentence cannot be suspended as prayed for by the petitioner/accused no.7. More particularly, the petitioner/ accused no.7 has failed to show any changed circumstances. Though the High Court has ample power and discretion to suspend the sentence, in the instant case, such discretion cannot be exercised, in view of the findings recorded by the learned Special Judge against the petitioner/accused no.7.
MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 P a g e | 15
28. While rejecting the earlier petition, this Court held that as the search and seizure had been carried out under the provisions of Section 41(2) & (3) of the ND7PS Act, there is no question of attracting the provisions of Section 42 of the said Act and the contentions advanced by the learned counsel appearing for the applicant about non-compliance with the provisions of Section 42(1) & (2) are misconceived and does not arise at all. Such a finding of this Court has not been assailed by the petitioner/accused no.7 till date.
29. The considerations are substantially different for grant of bail under Section 439 Cr.P.C. pre-conviction and under Section 389(1) Cr.P.C. post-conviction. In the light of the provision under Section 37 of the Act and the law laid down by the Hon'ble Apex Court, this Court is not inclined to exercise discretion under Section 389(1) of Cr.P.C., for the present, by directing release of the petitioner/accused no.7 on bail.
30. Taking into account the gravity of the offence and the conviction and sentence imposed on the petitioner/accused no.7, this Court is of the view that the petitioner/accused no.7 is not entitled to suspension of sentence merely because he is languishing in jail from 27.11.2020 and the appeal is going to MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022 P a g e | 16 take time for disposal. If really, there is an urgency in the matter, the appellant shall be at liberty to take steps to request the learned Judge dealing with the criminal appeal for early hearing of the criminal appeal by filing an application. That apart, the rigors of Section 37 of the Act would have to be met before the sentence of a convict is suspended and bail granted and mere passage of time cannot be a reason for the same and the petitioner/accused no.7 has not even undergone half of the sentence imposed on him.
31. In the result, MC (Crl. A) No.14 in Criminal Appeal No.2 of 2021 is dismissed. No costs.
JUDGE FR/NFR Sushil MC(Crl.A) No. 14 of 2022 in Crl. A. No. 2 of 2022