THE STATE (GNCT OF DELHI) NARCOTICS CONTROL BUREAU versus LOKESH CHADHA on 2 March 2021

1. Leave granted.

2. This appeal arises from a judgment of a learned Single Judgeof the High Court of Delhi dated 28 July 2020, by which the application

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Afiled by the respondent seeking suspension of sentence under Section389(1) of the Code of Criminal Procedure 1973[1] has been allowed.

3. The respondent has been convicted of offences punishable underSections 23(c) and 25A of the Narcotic Drugs and PsychotropicSubstances Act 1985[2]. He has been sentenced to suffer rigorousBimprisonment for ten years in respect of the offence under Section 23(c)and for three years under the provisions of Section 25A, apart from fine.

4. Briefly stated, on 2 December 2015, the IO of the NarcoticsControl Bureau, Delhi Zonal Unit received a phone call from DHL Courierthat two parcels were lying in the office and were suspected to containCnarcotic drugs. Accordingly, a team of the Narcotics Control Bureau,Delhi Zonal Unit, reached the office of DHL. Two parcels were seized.The parcels were found to contain 325 grams of heroin and 390 gramsof pseudoephedrine. The parcels were booked to a foreign destination,at the behest of a foreign national, by the co-accused who was anemployee of the respondent. The respondent himself is a proprietor ofDthe courier agency which had accepted the parcels initially for bookingfrom the foreign national.

5. The Special Judge, after considering the entirety of the evidenceon the record, came to the conclusion that the offence stood establishedas against the respondent, but the benefit of doubt was granted to theEco-accused on the ground that he was only an employee who was actingat the behest of the respondent. An appeal has been filed before theHigh Court of Delhi by the respondent. While considering the applicationfor suspending the sentence, the learned Single Judge recorded thefollowing submissions of the respondent in paragraph 2 of the impugnedorder:F

“2. Learned counsel for the appellant submits that out of the totalsentence of 10 years awarded to the appellant by the Trial Court,the appellant has already undergone a period of about 4 years and4 months. He has taken the Court through the records to showthat though the appellant who was owner of the courier companyGhas been convicted and the employee of the company who hadreceived the parcels, has been acquitted on the same set ofevidence. It is further submitted that no investigation was madeto arrest the consignor. He also submits that since the appeal is 1 “CrPC”H2 “NDPS Act”

likely to take some time to come up for final hearing, no usefulpurpose would be served in keeping the appellant in jail till suchtime and prays that the appellant’s sentence may be suspendedduring the pendency of the appeal.”

6. The application was opposed on behalf of the Narcotics ControlBureau by the Senior Standing Counsel, who appeared to oppose thesuspension of sentence. The High Court, while passing an order ofsuspension of sentence, indicated its reasons in paragraph 4 of the order,which reads as follows:

“4. Looking into the facts and circumstances of the case and theperiod undergone by the appellant and the fact that the appeal isnot likely to be taken for hearing in near future on account ofdisruption caused by COVID-19 pandemic, the application isallowed and the sentence of the appellant is suspended during thependency of the appeal on his furnishing a personal bond in thesum of Rs.50,000/- with one surety of the like amount to thesatisfaction of the concerned Jail Superintendent/Duty Magistrate,subject to the following further conditions:

(i) The appellant will not leave NCT of Delhi without priorpermission of the Court.

(ii) The appellant shall appear before the Court as and when theappeal is taken up for final hearing.

(iii) In case of change of address, the appellant shall promptlyinform the same to the concerned IO as well as to the Court.”

7. Mr Aman Lekhi, learned Additional Solicitor General appearingon behalf of the appellant, submits that the provisions of Section 37 ofthe NDPS Act contain stringent requirements before an application forbail can be allowed. Learned Additional Solicitor General submits thatone of the requirements is that “the court is satisfied that there arereasonable grounds for believing that he is not guilty of such offence andthat he is not likely to commit any offence while on bail”. It was urgedthat in a case such as a present where the conviction is under theprovisions of Sections 23(c) and 25A of the NDPS Act, the requirementof Section 37 that “there are reasonable grounds for believing that he isnot guilty of such offence” must apply a fortiori because the trial Courtafter conducting a trial has, on the basis of the evidence which is adduced,come to the conclusion that the offence has been established. In the A

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Apresent case, it was urged that absolutely no reasons have been indicatedby the learned Single Judge of the High Court for granting bail, save andexcept for a vague reference to the “facts and circumstances” of thecase, the period undergone by the respondent and the fact that the appealwas not likely to be taken for hearing in the near future due to thedisruption caused by the Covid-19 pandemic.B

8. On the other hand, Ms Nidhi, learned counsel appearing throughthe Supreme Court Legal Services Committee to represent therespondent, has adverted to the judgment of the Trial Judge and submittedthat prima facie the involvement of the respondent would not standestablished. That apart, it has been submitted that the respondent hasCundergone about four years and four months of imprisonment and theHigh Court having exercised its discretion to grant bail, a case forinterference has not been made out.

9. While considering the rival submissions, we must at the outsetadvert to the manner in which the learned Single Judge of the HighDCourt has dealt with the application for suspension of sentence underSection 389(1) of CrPC. The offence of which the respondent has beenconvicted by the Special Judge arises out of the provisions of Sections23(c) and 25A of the NDPS Act. The findings of the learned SpecialJudge which have been arrived at after a trial on the basis of evidenceEwhich has been adduced indicate that the respondent who was aproprietor of a courier agency was complicit with a foreign national inthe booking of two parcels which were found to contain 325 grams ofheroin and 390 grams of pseudoephedrine. Section 37 of the NDPS Actstipulates that no person accused of an offence punishable for offencesunder Section 19 or Section 24 or Section 27A and also for offencesFinvolving a commercial quantity shall be released on bail, where thepublic prosecutor opposes the application, unless the Court is satisfied“that there are reasonable grounds for believing that he is not guilty ofsuch offence and that he is not likely to commit any offence while onbail”. Where the trial has ended in an order of conviction, the HighCourt, when a suspension of sentence is sought under Section 389(1) ofGCrPC, must be duly cognizant of the fact that a finding of guilt has beenarrived at by the Trial Judge at the conclusion of the trial. This is not tosay that the High Court is deprived of its power to suspend the sentenceunder Section 389(1) of CrPC. The High Court may do so for sufficientreasons which must have a bearing on the public policy underlying theHincorporation of Section 37 of the NDPS Act. At this stage, we will refer to the decision of a two-Judge Bench of this Court in Preet PalSingh v State of Uttar Pradesh[3] where Justice Indira Banerjee,speaking for the Court, observed as follows:

“35. There is a difference between grant of bail under Section439 of the CrPC in case of pre-trial arrest and suspension ofsentence under Section 389 of the CrPC and grant of bail, post-conviction. In the earlier case there may be presumption ofinnocence, which is a fundamental postulate of criminaljurisprudence, and the courts may be liberal, depending on thefacts and circumstances of the case, on the principle that bail isthe rule and jail is an exception, as held by this Court in DataramSingh v. State of U.P. and Anr. (supra). However, in case of post-conviction bail, by suspension of operation of the sentence, thereis a finding of guilt and the question of presumption of innocencedoes not arise. Nor is the principle of bail being the rule and jail anexception attracted, once there is conviction upon trial. Rather,the Court considering an application for suspension of sentenceand grant of bail, is to consider the prima facie merits of the appeal,coupled with other factors. There should be strong compellingreasons for grant of bail, notwithstanding an order of conviction,by suspension of sentence, and this strong and compelling reasonmust be recorded in the order granting bail, as mandated in Section389(1) of the Cr.P.C.”

10. The principles which must guide the grant of bail in a caseunder the NDPS Act have been reiterated in several decisions of thisCourt and we may refer to the decision in State of Kerala v Rajesh[4].The High Court unfortunately, in the present case, has not applied itsmind to the governing provisions of the NDPS Act. On the basis of thematerial which emerged before the learned Special Judge and whichforms the basis of the order of conviction, we are of the view that nocase for suspension of sentence under Section 389(1) of CrPC wasestablished. The order granting suspension of sentence under Section389(1) of CrPC is unsustainable and would accordingly have to be setaside.

11. While concluding, however, we hasten to add that ourobservations are confined to the question as to whether a case for 3 (2020) 8 SCC 645

4 (2020) 12 SCC 122

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Asuspension of sentence was made out and shall not affect the merits ofthe case when the appeal comes up for hearing before the High Court.

12. For the above reasons, we allow the appeal. The judgmentand order of the High Court dated 28 July 2020 suspending the sentenceof the respondent shall stand set aside and the respondent shall surrenderBforthwith to the sentence. However, having regard to the fact that therespondent has undergone four years and four months of imprisonment,we would request the High Court to take up the appeal for hearing andfinal disposal upon the respondent’s surrendering to the sentence anddispose it of by the end of 2021.

C13. Pending application, if any, stands disposed of.

Kalpana K. Tripathy

Appeal allowed.

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