TAMANNA v. THE STATE (NCT OF DELHI)

1. The appellant has moved this application for suspension of sentence and for grant of bail till the disposal of the appeal. The appeal preferred by the present appellant was admitted on 01.12.2021. Notice of the application for suspension of sentence was issued and nominal roll has been called. 1.[1] The case of the present appellant is that mandatory provision of Section 42, 50 and 55 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) have not been complied with and the search of the accused was not conducted before any nearest gazetted Officer or the Magistrate. The applicant is stated to be in JC since 14.01.2014 and has undergone more than half of the sentence and hence he is entitled to suspension of sentence as the appeal is not likely to be heard soon. The applicant is stated to be permanent resident of Delhi and he has clean antecedent and except for this case, there is no other case and there is no 2022:DHC:1923 Crl. Appeal No. 371/2021 Pg. 2 of 4 apprehension of absconding or misusing the bail.

2. Notice was issued to the State.

3. I have heard the arguments.

4. Nominal roll has been called for from the Jail. Nominal roll shows that as on 30.04.2022, the applicant has already undergone 7 years 6 months and 21 days of imprisonment out of 10 years imprisonment awarded vide order dated 28.09.2021 along with fine of Rs. 1,00,000/- and default SI for one year. The fine has also not been deposited. The unexpired portion of sentence is 2 years 5 months and 9 days. The said nominal shows that there is no other case pending against the present applicant.

5. Counsel for the applicant relies upon judgment titled Mossa Koya KP Vs. State (NCT of Delhi) being Crl. Appeal no 1562/2021 decided on 06.12.2021 by the Hon’ble Supreme Court. That was the case under Section 21, 29, 61 and 85 of NDPS Act and the appellant was also charged under Section 29 of the NDPS Act and he had undergone 8 years and 5 days in custody.

6. The suspension of sentence had been strongly opposed by the State.

7. The Hon’ble Supreme Court in Mossa Koya KP Vs. State (NCT of Delhi) (supra) observed as under:- “12. We appreciate the submission of the Additional Solicitor General that offences under the NDPS Act are of serious nature and the case is at the post conviction stage. Yet the Court cannot be unmindful of the fact that the appellant has undergone 8 years out of the total sentences of 10 years. The appeal is unlikely to be heard early. In all probability, the entire sentence would have been undergone by the time the appeal is heard. The decisions on the basis of which the High Court of Delhi has declined to grant suspension of sentence, are, at the highest, a broad guideline and cannot be placed on the same pedestal as a statutory inderdict. With the pendency of the work in the High Court, it may not be feasible to expedite disposal of the appeal within a short period. Crl. Appeal No. 371/2021 Pg. 3 of 4

13. In the circumstances, particularly, since the appellant has undergone 8 years out of the total sentence which has been imposed on him, we are of the view that a fit and proper case has been made out for the suspension of the sentence under Section 389 Cr.P.C.

14. We accordingly allow the appeal and set aside the impugned order of the High Court. The sentence of the appellant shall remain suspended under Section 389 Cr.P.C. subject to such terms and conditions as may be imposed by the Judge, NDPS, Patiala House Courts, New Delhi. The appellant would cooperate in the expeditious disposal of the appeal and shall not apply for adjournment when the matter is taken up.”

8. Learned APP has submitted that as per the judgment in Daler Singh vs. State of Punjab 14 (SCC) Online P & H 24096, the guidelines provide for at least 15 months imprisonment post-conviction. In the present case, the petitioner has undergone imprisonment for more than 7 months as postconviction period.

9. Counsel for the petitioner submits that the guidelines laid down in Daler Singh (supra) are only guidelines which are not to be observed with mathematical precision and the present case is more or less similar to Mosa Koya P (supra).

10. I am in agreement with submissions made by the learned counsel for the applicant/appellant. As mentioned earlier, the appellant has already undergone more than 7 and half years of imprisonment; the appeal is only of the year 2021, which is not likely to be heard soon and if the appellant is not granted bail at this stage, a day may come when he would complete his entire sentence in jail before the appeal will be heard.

11. The long pendency of these types of appeals is a matter for concern but keeping in view large number of matters pending in High Court, it is not possible to hear the appeals in a time bound manner and under these Crl. Appeal No. 371/2021 Pg. 4 of 4 circumstances, it is a fit case where the sentence of the appellant may be suspended for the time being especially keeping in view that there is no other involvement of the present appellant except the present case.

12. Hence the sentence of the present appellant is suspended during the pendency of the appeal and he be released on execution of personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the Jail Superintendent, subject to the following conditions:-

(i) The appellant shall appear in Court as and when his appeal is listed;