TaxTMI 
TaxTMI 
2022 (1) TMI 1471
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....s said to have been arrested while driving a jeep and 465 Kilos of poppy husk was allegedly recovered from the jeep of which the applicant was the driver. 4. Learned counsel for the applicant has inter alia argued that no independent witness was joined in, in the search of the applicant at the time of the alleged recovery. He also contends that there is violation of Section 42 and there are material discrepancies in the statements of prosecution witnesses, which could prove fatal to the prosecution case at the time of final adjudication, and that the conviction has been wrongly recorded. 5. However, the primary submission of learned counsel for the applicant is that the applicant having undergone 08 years 11 months 19 days of substantive sentence of 12 years, ought to be considered for suspension of the rest of his sentence as the pending appeal is not likely to be heard in the near future in view of the COVID-19 pandemic. 6. Learned counsel for the State, on the other hand, contends that the applicant is a habitual offender having two other convictions against him. He further contends that the prior convictions themselves would disentitle the applicant for grant of bail in view....
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.... at some length. 9. That the right to a speedy trial and expeditious disposal of the appeal flows from Article 21 of the Constitution of India, is no longer res integra. The Hon'ble Supreme Court in Abdul Rehman Antulay and others vs. R.S. Nayak and another, 1992 (2) RCR (Criminal), 634 held as under:- "54. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are: 1. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. 2. Right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, i....
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....d, prevailing local conditions and so on-what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. 6. Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same ideal has been stated by White, J. in U.S. v. Ewell, 15 Law Edn. 2nd 627, in the following words: the sixth amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than more speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to bec....
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....trial. 11. An objection based on denial of Right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis." 10. In 'Smt. Akhtari Bi vs. State of M.P., 2001 (2) RCR (Criminal) 302,' the Hon'ble Supreme Court had observed as under:- "5. To have speedy justice is a fundamental right which flows from Article 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail. This Court, has time and again, reminded the executive of their obligation to appoint requisite number of judges to cope with the ever increasing pressure on the existing judicial apparatus. Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction. It is unfortunate that even from the existing str....
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....ordered to be released on bail to the satisfaction of the learned trial Court in connection with NDPS Special Case No. 27/2012 in F. No. NCB/BZU/CR-19/2011." 12. In the case of 'Sheru vs. Narcotics Control Bureau, 2020 (4) RCR (Criminal) 242', the Hon'ble Supreme Court suspended the sentence of the applicant therein, who had undergone almost 08 years. Undoubtedly, the Court recorded that the order, in question, ought not to be treated as precedent, however, the fact remains that the sentence was suspended on account of non-hearing of the appeal due to the ongoing COVID-19 pandemic. Paras 3, 4, 5, 6 and 7 of the judgment are reproduced as under:- "3. The submission of the learned senior counsel for the appellant, inter alia, is that he has been in custody for almost eight years and despite the directions of this Court to treat the case at priority, at present the case is not reached for hearing. 4. On the other hand, the learned Additional Solicitor General for the respondent contends that the normal principle of a large period having already been served during the pendency of the appeal cannot be a ground to suspend the sentence and grant bail, in view of the strin....
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....per case has been made out for the suspension of the sentence under Section 389 Cr.P.C." 14. This Court in 'Tule Ram vs. State of Haryana, 2005 (4) RCR (Criminal) 319', also concluded that delayed disposal of an appeal would entitle the applicant to apply for bail. Para 13 is reproduced as under:- "13. While giving the interpretation, we are conscious of the fact that according to the constitutional mandate of Article 21 of the Constitution of India a speedy trial is guaranteed by the State for all persons falling foul with law. Since an appeal is only an extension of the trial, the Courts of law would be obliged to ensure the expeditious disposal of the appeals and pass appropriate orders as and when they feel that the right of the convict to the guarantee provided under Article 21 of the Constitution of India is being interfered with. As and when any appellant move this Court, then taking into consideration the facts and circumstances of the case, in case the delay in the disposal of the appeal is not attributable to the appellant himself, the Court may pass such orders as the appellant may be entitled in view of the provisions of Article 21 of the Constitution of Indi....
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....or the undergoing a period of three years post-conviction is not be an absolute rule. The same principle, would be applicable to cases under the NDPS Act which has its own limitations in view of the provisions of Section 32-A of the NDPS Act and the guide-lines laid down in Daler Singh's case (supra) which are illustrative would continue subject to convicts convicted after long trials may seek suspension of sentence before completing the requisite periods. The aforesaid guide-lines are in consonance with the spirit of Article 21. Where there is a delay in the disposal of an appeal, sentence may be suspended and exception for which has been carved out as held by a Full Bench of this Court in Tule Ram's case (supra)." 16. This Court in the recent case of 'Harpal Singh vs. National Investigation Agency and another, CRM-8262-2021 in CRA-S-3721-SB-2015, decided on 31.08.2021, suspended the sentence of the applicant, who had undergone about 7 years 04 months of his substantive sentence of 10 years. Paras 3 and 10 of the judgment are reproduced hereinbelow:- "3. Learned counsel for the applicant-appellant submits that as against total sentence period of 10 years awarded und....
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.... a foreign national in the booking of two parcels which were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied "that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail". Where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought under Section 389(1) of CrPC, 1973 must be duly cognizant of the fact that a finding of guilt has been arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC, 1973. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act. At this stage, we will refer to the decision of a two-J....
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.... the factual matrix in the case of the applicant, we are inclined to suspend the rest of the sentence of the applicant for the following reasons:- (i) The applicant has undergone approximately 09 years of his substantive sentence of 12 years i.e. 03 years more than the prescribed period under Daler Singh's case (supra). (ii) The applicant was convicted in FIR No. 244 dated 10.05.2006 in which he was sentenced for 02 years, and he has undergone the same. In the second conviction in FIR No. 84 dated 21.07.2006, the applicant was sentenced for 10 years and he has been granted bail vide order dated 03.12.2009. So, as on date, the applicant is in custody only in the present case. (iii) If pendency of other FIRs is the only consideration for denial of bail, then whenever a convict/under-trial applies for bail, the same would be denied simply looking at the pendency of another case. While, it is true that the grant of bail/suspension of sentence would have to be looked at in the larger context of the criminal antecedents of the accused/convict, it is equally true that the appreciation of evidence in the trial/appeal would have to be with reference to the evidence in that case al....