2024 (4) TMI 1308 - HC - Indian Laws

Sentence suspended in NDPS case after appellant served over half term; suspension conditioned on personal and surety bonds

HC suspended the appellant's sentence in an NDPS case where he had undergone over half the term and the appeal was pending. Suspension was granted subject ... Seeking suspension of sentence - offences u/s 8/21/23/28/29 of the NDPS Act - HELD THAT:- The Hon’ble Supreme Court in Saudan Singh v. State of Uttar Pradesh [2021 (10) TMI 1445 - SC ORDER] and Sonadhar v. State of Chhattisgarh [2021 (10) TMI 1446 - SUPREME COURT] has laid down that for convicts in custody in cases other than life sentence cases, the broad parameter of 50% of the actual sentence could become basis for suspension of sentence. Further, the Supreme Court in Kashmira Singh v. State of Punjab, [1977 (9) TMI 117 - SUPREME COURT] has observed that merely because the accused has been convicted for a serious offence, his right of being enlarged on bail during the pendency of his appeal is not forfeited. Having regard to the law laid down by the Hon’ble Supreme Court and considering the fact that the appellant has already undergone more than half of the sentence awarded to him and that the disposal of appeal is likely to take time, the sentence of the appellant is suspended subject to his furnishing a Personal Bond in the sum of Rs. 15,000/- and one Surety Bond of the like amount to the satisfaction of the Learned Trial Court/CMM/Duty Magistrate, further subject to the fulfilment of conditions imposed. Bail application allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the sentence of a convict (other than life sentence) may be suspended under Section 389 Cr.P.C. where the convict has already undergone a substantial part of the sentence and the appeal is pending. 2. Whether the principle that convicts in custody may be enlarged on bail after serving roughly 50% of the sentence (as applied in recent Supreme Court decisions) is applicable to suspension of sentence under Section 389 Cr.P.C. 3. Whether the seriousness of the offence (NDPS convictions attracting long custodial sentences) precludes suspension of sentence during the pendency of appeal. 4. What conditions, if any, are appropriate when suspending sentence under Section 389 Cr.P.C. in such cases. ISSUE-WISE DETAILED ANALYSIS Issue 1: Suspension of sentence under Section 389 Cr.P.C. where substantial part of sentence is already undergone Legal framework: Section 389 Cr.P.C. empowers the Court to suspend sentence pending appeal, subject to such conditions as it thinks fit. Precedent Treatment: The Court relies on recent Supreme Court decisions recognizing broad parameters for enlargement on bail for convicts (Saudan Singh; Sonadhar) and on earlier authority (Kashmira Singh) addressing release on bail during pendency of appeal even in serious offences, emphasizing interest of justice. Interpretation and reasoning: The Court applies the statutory power under Section 389 Cr.P.C. in light of the principle that prolonged incarceration pending appeal may operate as a denial of justice, particularly where the appellate disposal is likely to take time. The fact that the convict has already undergone a significant period of actual custody (noted as more than half of the sentence) is treated as a decisive factor weighing in favour of suspension, since continued custody would risk rendering any eventual acquittal or reduction of sentence nugatory. Ratio vs. Obiter: Ratio - It is a governing proposition that where a convict (other than life sentence) has undergone a substantial portion of the sentence and the appeal is likely to take time, suspension of sentence under Section 389 Cr.P.C. may be granted subject to conditions. Obiter - ancillary observations on the broader policy behind bail practices in higher courts. Conclusion: The Court held that suspension of sentence is warranted under Section 389 Cr.P.C. where the appellant has already served more than half the custodial term and the appeal's disposal will likely be delayed. Issue 2: Applicability of the '50% of sentence' parameter from recent Supreme Court decisions to suspension of sentence Legal framework: Principles developed by higher courts on enlargement on bail for convicts pending appeal, including identification of benchmarks to guide judicial discretion. Precedent Treatment: The Court expressly invokes and applies the approach from Saudan Singh and Sonadhar, which identified that for convicts in custody (other than life terms) the broad parameter of 50% of the actual sentence can be a basis for suspension/enlargement pending appeal. Interpretation and reasoning: The Court treats the 50% benchmark as a guiding parameter rather than an inflexible rule. Given that the appellant had already undergone more than half the sentence, the benchmark pointed strongly towards suspension. The Court balances this parameter with case-specific considerations (nature of offence, likelihood of delay in appeal disposal) before exercising discretion. Ratio vs. Obiter: Ratio - The 50% parameter is treated as a valid, applicable guiding principle for suspension/ enlargement pending appeal in non-life sentence cases. Obiter - commentary that such benchmarks are broad parameters to guide discretion, not absolute entitlements. Conclusion: The Court applied the 50% parameter as a sufficient ground to grant suspension in the present circumstances, subject to conditions. Issue 3: Effect of seriousness of offence (NDPS convictions) on entitlement to suspension pending appeal Legal framework: Courts must balance the seriousness of the offence against the right to liberty and the consequences of prolonged incarceration pending appeal; earlier authority (Kashmira Singh) recognizes that serious offences do not ipso facto preclude grant of bail when appeals are pending and delay is foreseeable. Precedent Treatment: The Court follows Kashmira Singh's admonition that seriousness alone cannot automatically justify continued incarceration pending appeal, particularly where delay would render appellate remedy ineffective. Interpretation and reasoning: Although the offences are serious (NDPS provisions with long sentences), the Court finds that such seriousness does not negate the applicant's entitlement to suspension when other criteria (substantial part of sentence served; likely delay in appeal) are satisfied. The Court imposes stringent conditions to mitigate risks arising from the seriousness of the offences. Ratio vs. Obiter: Ratio - Seriousness of the offence is a relevant factor but not determinative; it may be addressed by imposing stricter conditions when suspending sentence. Obiter - reflections on historical practices of denying bail in serious cases and the need to revisit such practices in interest of justice. Conclusion: Seriousness of the NDPS offences did not preclude suspension; instead, it informed the imposition of specific protective conditions upon suspension. Issue 4: Appropriate conditions to accompany suspension of sentence Legal framework: Section 389 Cr.P.C. permits suspension of sentence subject to such terms as the Court may fix; conditions must be reasonably tailored to ensure attendance and prevent interference with prosecution. Precedent Treatment: The Court's approach aligns with established practice of conditioning release/suspension on bonds, sureties, travel restrictions, non-contact with witnesses, and maintenance of communication with investigating agencies. Interpretation and reasoning: To balance liberty with public interest and fair trial concerns, the Court directed furnishing of a personal bond and surety (specified amounts), restriction on leaving the territorial limits without permission, requirement to attend court hearings, obligation to keep a working mobile number available to the IO and not to change it without intimation, prohibition on engaging in criminal activity and on communicating with witnesses. These conditions are deemed necessary and proportionate to secure attendance and prevent obstruction of justice. Ratio vs. Obiter: Ratio - When suspending sentence, the Court may and should impose specific, enforceable conditions (bond/surety, territorial restriction, communication requirement, no-contact with witnesses) tailored to the risks identified. Obiter - the particular monetary amounts and administrative directions are case-specific. Conclusion: Suspension was granted subject to a personal bond and surety of specified sums and the enumerated conditions to safeguard the interests of justice. Cross-references and Integrated Finding The Court integrated the above issues: applying the 50% benchmark from recent precedents and the principle in Kashmira Singh regarding bail in serious offences, it concluded that suspension under Section 389 Cr.P.C. was justified where the convict had served more than half the sentence and appellate delay was likely; the seriousness of the offence was mitigated by imposing stringent conditions to protect prosecution interests and ensure attendance.