Manipur High Court
Mr. Lalthang Lhouvum Aged About 54 Years vs The State Of Manipur on 9 August, 2021
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
SHAMURAILATP
AM SUSHIL
SHARMA
Digitally signed by IN THE HIGH COURT OF MANIPUR
SHAMURAILATPAM SUSHIL
SHARMA
AT IMPHAL
Date: 2021.08.11 13:25:32 MC(Crl.Appeal) No.32 OF 2020
+05'30' Ref: Criminal Appeal No.11 of 2020
Mr. Lalthang Lhouvum aged about 54 years, s/o(L)
Thangkholun Lhouvum of Motbung Bazar, P.O. & P.S. G.
Saparmaina, District-Kangpokpi (Earlier Senapati),
Manipur-795107..
....... Applicant
- Versus -
The State of Manipur.
.... Respondent
BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN For the Applicant : Mr.Serto T. Kom, Advt.
For the Respondent : Mr.Y. Ashang, PP.
Date of hearing : 09.04.2021
Date of Judgment & Order : 09.08.2021
JUDGMENT &ORDER
(CAV)
[1] This petition has been filed by the petitioner under Section
389(1) Cr.P.C praying to suspend impugned judgment dated
Mc(cril.appeal) no. 32 of 2020. Page 1
26.06.2020 and sentence dated 30.06.2020 imposed on the petitioner in Sessions Trial Case No. 113/2015/16 of 2016 on the file of the learned Special Judge, NDPS, Lamphelpat, Manipur and to release him on bail pending criminal appeal.
[2] By the judgment dated 26.06.2020 in Sessions Trial Case No. 113/2015/16 of 2016, the learned Special Judge, convicted the petitioner for the offence under Section 18(b) of the NDPS Act, 1985. After giving conviction judgement, the learned Special Judge, directed to list the matter on 29.06.2020 for sentence hearing and the petitioner was sent to jail. On 30.06.2020, the petitioner was produced before the learned Special Judge, and the learned counsel for the parties were heard, particularly, the petitioner and his counsel, qua sentence to be awarded to the petitioner.
[3] Upon consideration of the rival submissions and upon perusal of the relevant Section under which the petitioner was convicted, the learned special Judge, sentence the petitioner to undergo 15 years rigorous imprisonment and to pay fine of Rs.1 lakh within a period of six months from the date of passing of the sentence order, in default, to undergo another period of six months Mc(cril.appeal) no. 32 of 2020. Page 2 imprisonment. The Learned Special Judge has also ordered that the period of detention undergone prior to the conviction by the petitioner shall be set off against the sentence of imprisonment within the ambit of Section 428 of Cr.P.C.
[4] Aggrieved by the conviction and sentence imposed on the petitioner, the petitioner has filed Criminal Appeal No.11 of 2020 before this Court. Along with the appeal, the petitioner has filed petition seeking to suspend the sentence stating that he is the sole earning member of his family and his wife, who is aged around 54 years was suffering from a chronic kidney disease and undergoing a regular hemodialysis therapy in the form of biearbonate dialysate at Shija Hospitals and Research Institute since December, 2019 for 8-10 times per month for about four hours at a time. It is stated that the ailment required much attention and care from near and dear ones. [5] The learned counsel for the petitioner submitted that there are lot of infirmities in the impugned judgement and the petitioner has got good case on merits in succeeding the appeal. He would submit that the trial Court erred in deciding that the petitioner failed to discharge his burden regarding conscious possessions of opium by Mc(cril.appeal) no. 32 of 2020. Page 3 adducing defence evidence to counter the version of the prosecution, because of the reason that when there is no issue of possession of the contraband by the petitioner and as such there is no duty on the part of the accused to discharge himself from any burden regarding conscious possession and in fact the trial Court has also recorded in the finding that the prosecution witnesses had stated that opium was not seized from the petitioner.
[6] The learned counsel further submitted that the prosecution failed to comply with the provisions of Sections 41 and 42 of the NDPS Act and in fact during trial, the prosecution failed to produce the polythene bag of light blue and white colour marked as WIN, which is allegedly used to carry the contraband suspected opium and which is also included in the seizure list and that there is no convincing explanation forthcoming from the prosecution. However, all these facts have been omitted to consider by the trial Court and erred in convicting the petitioner.
[7] The learned counsel further submitted that the petitioner was in custody during trial and in fact, while imposing sentence, he was brought from the jail.
Mc(cril.appeal) no. 32 of 2020. Page 4 [8] The learned counsel for the petitioner then submitted that the criminal appeal would not be taken up for hearing in the near future and therefore, the petitioner is entitled to suspension of sentence pending appeal and that the petitioner undertakes to abide by the conditions imposed by this Court. He would submit that in similar circumstances, this Court suspended the sentence and released the accused on bail. In support, the learned counsel has produced the order dated 31.5.2019 passed in Criminal Appeal No.11 of 2018 (Mangte Indramani alias Soso Koireng v. State of Manipur) and order dated 07.12.2020 passed in M.C.(Criminal Appeal No.11 of 2020 (Lianpu Simte @ Tuankhanlian v. State of Manipur). [9] According to the learned counsel for the petitioner, the petitioner was on bail during trial and he had fully co-operated in the trial by putting his personal appearance in almost all the hearing dates fixed by the learned Special Judge and he never violated any terms and conditions of his releasing on bail during the whole proceeding of the trial. It is the say of the petitioner that he is the breadwinner of the family and he has to look after his wife and children. Mc(cril.appeal) no. 32 of 2020. Page 5 [10] The learned counsel for the petitioner urged that detention of the petitioner during pendency of the appeal is a severe punishment to all his family members and prays for suspension of sentence pending appeal.
[11] The learned counsel next submitted that when a convicted person is sentenced to a fixed period of sentence and when the convict files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances.
[12] Per contra, the learned Additional Public Prosecutor submitted that the trial Court minutely dealt with the submissions advanced by both the parties in deciding the case and the same has been recorded in the impugned judgement. Therefore, which version is more trustworthy and/or convincing to accept in deciding the case is to be considered at the time of hearing the appeal on merit and not at this stage. He would submit that whether the burden of proof cast upon the accused was properly discharge in the eye of law by the accused or not is required to be examined at the time of hearing the appeal, but not at this interim stage.
Mc(cril.appeal) no. 32 of 2020. Page 6 [13] The learned Additional Public Prosecutor further submitted that the allegation of non-compliances of Sections 41 and 42 of NDPS Act is categorically denied on the ground that the trial Court had exhaustively dealt with the issue as raised by the petitioner in the impugned judgment and therefore, no further proof is required unless the petitioner proved otherwise.
[14] The learned Additional Public Prosecutor then submitted that whether the story of the prosecution lacks credibility or not can only be ascertained by examining the evidences available on record in entirety. Likewise, whether the sentence order is illegal or not can only be ascertained only after the entire evidences are examined by the appellate Court. Hence, it would be too premature to arrive at any conclusion for suspending the impugned sentence. The learned Additional Public Prosecution finally submitted that the petitioner is not entitled to the benefit of Section 389(1) Cr.P.C. and therefore, prayed for dismissal of the petition.
[15] This Court considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.
Mc(cril.appeal) no. 32 of 2020. Page 7 [16] The petitioner was convicted under Section 18(b) of the NDPS Act, 1985 and sentenced to undergo rigorous imprisonment of 15 years and to pay a fine of Rs.1 lakh, in default to undergo six months imprisonment. The judgement of the learned Special Judge is dated 26.06.2020 and sentence was imposed on 30.06.2020 and from 30.06.2020 onwards, the petitioner was in jail. [17] In the instant case, the petitioner challenged the judgement of the learned Special Judge on various grounds as could be seen from the grounds of appeal. The petitioner has raised a ground that the learned Special Judge lost sight to the non-compliance of the mandatory provision of the NDPS Act, more particularly, Sections 41 and 42 of the Act. The petitioner has also raised a ground that the prosecution failed to produce the polythene bag with a mark WIN, which was included in the seizure list. The petitioner also stated that the trial Court has recorded in the finding that the PWs had stated that opium was not seized from the petitioner.
[18] By placing reliance upon the decisions in the cases of Dadu alias Tulsidas v. State of Maharashtra, (2000) 8 SCC 437 and Union of India v. Attan Malik @ Habul, (2009) 2 SCC 624, the Mc(cril.appeal) no. 32 of 2020. Page 8 learned Additional Public Prosecutor submitted that person convicted under the NDPS Act is not entitled to seek suspension as a matter of right on the basis that provision in Section 32-A depriving Courts of the power of suspending sentence had been held to be void. [19] In Dadu alias Tulsidar (supra), the Apex Court held:
"25. Judged from any angle, the section insofar as it completely debars the appellate courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32-A insofar as it ousts the jurisdiction of the court to suspend the sentence awarded to a convict under the Act is unconstitutional. We are, therefore, of the opinion that the Allahabad High Court in Ram Charan case (1991) 9 LCD 160 (All) has correctly interpreted the law relating to the constitutional validity of the section and the judgment of the Gujarat High Court in Ishwar Singh M.Rajput case (1990) 2 Guj LR 1365 cannot be held to be good law."
[20] Thus, the prayer for suspension of sentence should be considered liberally unless there is any statutory restriction. Further, Section 32-A of NDPS Act does not in any way affect the powers of the Mc(cril.appeal) no. 32 of 2020. Page 9 authorities to grant parole and a sentence awarded under the Act can be suspended by the appellate Court.
[21] At this juncture, it is pertinent to note the decision of the Hon'ble Supreme Court in the case of Bhagwan Rama ShindeGosai and others v. State of Gujarat, (1999) 4 SCC 421. The said case deals with suspension of sentence that when a convicted person is sentence to a fixed period and when the convict files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances. [22] In Bhagwan Rama ShindeGosai (supra), the Honourable Supreme Court held:
"3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose Mc(cril.appeal) no. 32 of 2020. Page 10 of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence, so as to make the appeal right, meaningful and effective. Of course, appellant courts can impose conditions when bail is granted."
[23] According to the petitioner, the arresting officer has failed to comply with the provisions of Section 50 of the NDPS Act. Section 50 of the Act is meant basically to protect an individual against the false implication by the police. If this protection is sought to be denied by the police, then this is one of the reasons which can lead, and is leading, the Court in the present case, to come to a prime facie, but reasonable satisfaction that the petitioner might not have been involved in the crime alleged.
[24] Where an appeal is preferred against conviction under the NDPS Act in the High Court, The High Court has ample power and discretion to suspend the sentence. That discretion has to be exercised judiciously depending upon the facts and circumstances of each case. Mc(cril.appeal) no. 32 of 2020. Page 11 While considering the suspension of sentence, each case is to be considered on the basis of the nature of the offence, the manner in which the occurrence had taken place, whether bail granted earlier had been misused. There was no straitjacket formula which could be applied in exercising discretion and the facts and circumstances of each case would govern the exercise of judicious discretion while considering an application file by a convict under Section 389 Cr.P.C. [25] It is to be mentioned that the appeal is of the year 2020 and due to practical the appeal cannot be taken up in the near future and disposed of expeditiously. The petitioner pleaded that his wife was suffering kidney disease and is undergoing a regular hemodialysis therapy in the form of bicarbonate dialysate and he is the sole breadwinner of the family and he has to look after his ailing wife. The petitioner also produced the medical records of his wife. However, the said medical records have not been rebutted by the respondent prosecution.
[26] On overall analysis of the matter, this Court is of the view that the prayer for suspension of sentence should be considered liberally unless there is any statutory restriction. Further, Section 32-A Mc(cril.appeal) no. 32 of 2020. Page 12 of the NDPS Act does not in any way affect the powers of the authorities to grant parole and a sentence awarded under the Act can be suspended by the appellate Court. Considering the facts and circumstances of the instant case and that the appeal would take substantial time to come up for final hearing, without expressing anything on the merits of the appeal and there are arguable points involved in the appeal, this Court finds that this is a fit case to suspend the sentence imposed on the petitioner pending appeal, However, subject to stringent conditions.
[27] Accordingly, the sentence imposed on the petitioner in special Trial Case No.113/2015/16 of 2016 dated 30.06.2020 on the file of the learned Special Judge, NDPS, Lamphelpat, Imphal, Manipur alone is suspended, subject to the compliance of the following conditions by the petitioner:
(a) The petitioner is directed to be released on bail on his furnishing a personal bond for Rs.1 lakh (Rupees One Lakh) with two sureties in the like sum to the satisfaction of the learned Special Judge, ND&PS, Lamphelpat, Imphal, Manipur.
Mc(cril.appeal) no. 32 of 2020. Page 13
(b) The petitioner, on his being enlarged on bail, is directed to report before the learned Special Judge, ND&PS, Lamphelpat, Imphal, Manipur on all Tuesday and Fridays at 10.00 A.M. till the disposal of the appeal pending before this Court.
(c) The petitioner shall also report before the Border Affairs Police Station on the First Monday of every month at 10.00 A.M.
(d) The petitioner shall not indulge in any criminal activities during the period of suspension of sentence.
(e) The Border Affairs Police is directed to monitor the petitioner and if they find the petitioner involved in any criminal activities, the Border Affairs Police is at liberty to bring it to the notice of this Court through the Public Prosecutor.
(f) The petitioner shall not leave the jurisdiction of the Court.
Mc(cril.appeal) no. 32 of 2020. Page 14
(g) In case of violation of any condition, the prosecution may ask for cancellation of bail.
(h) It is made clear that this Court has not delved into the merits of the appeal.
JUDGE FR/NFR Sushil Mc(cril.appeal) no. 32 of 2020. Page 15