Delhi High Court - Orders
Jabar @ Mohd Asmile vs State ( Nct Of Delhi) on 5 April, 2023
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 416/2019 & CRL.M.(BAIL) 8386/2020
JABAR @ MOHD ASMILE ..... Appellant
Through: Mr. S.S. Das, Ms. Sia Das and Ms.
Ria Das, Advocates.
versus
STATE ( NCT OF DELHI) ..... Respondent
Through: Mr. Ritesh Kumar Bahri, APP for
the State along with SI Om Parkash,
ANIF Crime Branch.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
ORDER
% 05.04.2023 CRL. M.B. 8386/2020
1. This petition has been filed seeking suspension of sentence of the appellant pending the disposal of the appeal by this Court. The appellant was convicted vide order dated 1st September, 2018 and was awarded sentence vide order dated 11th September, 2018 of 15 years.
2. The appellant apparently is about 70 years of age now and has been in custody for about 7 ½ years. As per the status report, on the basis of information received, one Farhad, who was allegedly supplying heroin to Nigerian nationals was apprehended along with co-accused Paulinus on 13th September, 2015. Search of Farhad was conducted and 1.5 Kilograms of heroin was recovered from pink colour polythene which he was carrying in his left hand.
3. Provisions of the NDPS Act being complied with, the FIR No. 142/2015 was registered at P.S. Crime Branch under Sections 21/29 of the Signature Not Verified Digitally Signed By:ANISH DAYAL NDPS Act. Apparently, at the instance of accused Farhad, the source was disclosed as that of Jabar Khan, the appellant herein, who was arrested.
4. All the three accused were convicted. Farhad, from whom the recovery had been made, has already been granted suspension of sentence vide order dated 25th June, 2020 of this Court.
5. Learned counsel for the appellant submits that a perusal of the impugned judgment of conviction would show that no recovery was made from the appellant either from him in person or from his house at Lajpat Nagar, New Delhi. The only evidence relating to the involvement of the appellant was the phone calls which were exchanged between Farhad and the appellant, however mere exchange of phone calls between two Afghanistani nationals who would have known each other, cannot per se implicate the appellant. Be that as it may, these aspects have to be contended by the appellant in his appeal.
6. At this stage, it is noted that the appellant is 70 years of age, has already undergone more than half of his sentence and the adjudication/disposal of present appeal is expected to take sometime. Also there is a medical report dated 11th November, 2022 filed before this Court which shows that the appellant has various health complaints including abdominal pain, weakness, hypertension, low back ache, chronic liver disease, chronic Hepatitis-C and has been examined by the Jail Doctor and prescribed medications.
7. As per the latest Nominal Roll, the jail conduct of the appellant has been 'Satisfactory'. A prior involvement in SC No. 145/2004 where the appellant was convicted and sentenced for 10 years, has now been completed on 26th March, 2018.
8. Learned APP for the State has refuted these submissions on the basis of the disclosure of co-accused Farhad and conspiracy of supply of drugs in Signature Not Verified Digitally Signed By:ANISH DAYAL which the appellant was clearly involved as evident from the exchange of numerous phone calls between the appellant and Farhad.
9. The appellant has undergone substantial period of sentence and the appeal is likely to take some time for hearing. In view of the directions of the Hon'ble Supreme Court in Sonadhar v. The State of Chhattisgarh, SLP (Crl.) 529/2021 vide order dated 6th October, 2021, as well as Saudan Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 3259 (where the Hon'ble Supreme Court has stated that in cases other than life sentence cases the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail) this Court deems it fit to suspend the sentence of the appellant. It is therefore directed that the sentence of the appellant be suspended pending the hearing of the appeal, on furnishing a personal bond in the sum of ₹100,000/- with one surety bond of the like amount, subject to the satisfaction of the learned Trial Court/ CMM/ Duty Magistrate, further subject to the following conditions:
i. Appellant will not leave the country without prior permission of the Court and will deposit his passport with the Ld. Trial Court. ii. Appellant shall provide permanent address to the Ld. Trial Court. The appellant shall intimate the Court by way of an affidavit and to the IO regarding any change in residential address. iii. Appellant shall appear before the Court as and when the matter is taken up for hearing.
iv. Appellant shall provide all mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the IO concerned. The mobile location be kept on at all times.Signature Not Verified Digitally Signed By:ANISH DAYAL
v. Appellant shall not indulge in any criminal activity and shall not tamper with the evidence of the case.
vi. Appellant shall record his presence at PS Crime Branch every alternate Saturday at 4pm and shall not be kept waiting for more than an hour.
10. Needless to state, but any observation touching the merits of the case is purely for the purposes of deciding the question of suspension of sentence and shall not be construed as an expression on merits of the matter.
11. A copy of the order be sent to the Jail Superintendent for information and necessary compliance.
12. Accordingly, the application is disposed of. Pending applications (if any) are disposed of as infructuous.
CRL. A. 416/20191. To come up in 'Regular Matters' in due course as per its own turn.
ANISH DAYAL, J APRIL 5, 2023 j Signature Not Verified Digitally Signed By:ANISH DAYAL