Case laws –
Sanjeev Kumar vs Ut Of J&K & Anr on 14 October, 2022 – Relevant paras
o Paras 1, 8, 9
o 1. Instant Criminal Appeal is directed against judgment of conviction
dated 22.02.2021 and order of sentence dated 23.02.2021 rendered by
the Court of Additional Sessions Judge, Jammu by virtue of which the
appellant along with other co-accused namely Dilawar Hussain were
held guilty for the commission of offence punishable under Section
8/21/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(for short „the NDPS Act‟), arising out of the FIR No.43/2017,
registered at Police Station Gangyal, Jammu, and were sentenced to
undergo rigorous imprisonment for a period of ten (10) years and also
fine in the sum of Rs.1.00 lakh each and in default of payment of fine,
the appellants shall further undergo simple imprisonment for a period of
six months.
o 8. In the case in hand, appellant/applicant has been found guilty by the
trial court of learned Additional Sessions Judge Jammu vide impugned
judgments dated 22.02.2021 and 23.02.2021 for commission of offences
punishable under Section 8/21/22 of NDPS Act and sentenced to
undergo rigorous imprisonment for (10) years and also fine in the sum
of Rs.1.00 lakh. Vide ratio‟s of the judgments of Bhagwan Ram Shinde
Gosai‟s and others case (1999) 4 Supreme Court Cases 421 (Supra), and
Vajida Bano‟s and others case rendered in CrlA (S) No. 05/2019 CrlM
No. 853/2019, there is no statutory restriction/prohibition in not
considering the application for suspension and releasing of
appellant/convict on bail. Appellant/convict is the resident of village
Kauna, Tehsil and District Pathankot has deep roots in the society and
do not possess the golden wings to flee from justice, as nothing
substantial has been brought before the notice of this court that
appellant/convict has absconded during trial. The seriousness or gravity
of offence is to be seen in cases where accused/convict is punished with
death penalty, life imprisonment or imprisonment of 10 years and above,
wherein, while considering the application for suspension and bail the
judicial description lies in the wisdom of the court. Right to life and
liberty of an individual is precious under Article 21 of the Constitution
of India and is also a very valuable right of accused/convict which also
continues during the appeal period as appeal is the continuation of the
trial.
o 9. Keeping in view the facts that the applicant/appellant is presently in
custody for the last five years and four months (since 14.06.2017), in
District Jail Kishtwar, of the total sentence imposed and there is no
immediate prospect of the main appeal being heard in near future, a fit
and proper case for suspension of sentence is made out.
Jasdev Singh @ Jassa vs State Of Punjab on 27 May, 2015 – relevant
paras 1, 4, 10, 15. – sentence suspended
o [1]. Applicant-appellant Jasdev Singh @ Jassa seeks suspension of
sentence during pendency of the present appeal. [2]. Applicant has been
convicted under Section 22(b) NDPS Act 1985 and has been sentenced
to undergo rigorous imprisonment for 10 years and to pay fine of
Rs.1,00,000/-. In the event of default of payment of fine, he shall further
undergo rigorous imprisonment for 1 year.
[4]. Now applicant has prayed for suspension of sentence during the pendency
of appeal on the ground that appeal is of the year 2014 and applicant has
undergone period of about 4 years and 5 months of actual sentence out of total
sentence of 10 years. [5]. Learned counsel for the applicant relies upon Dalip
Singh @ Deepa v. State of Punjab, 2010(2) RCR (Crl.) 566, (Full Bench) of
this Court to contend even if Appellate Court has no powers to suspend the
sentence during pendency of appeal in the absence of CRM No.9546 of 2015
in any provision to that effect in the Code, the same can be suspended in view
of following principles laid down in aforesaid judgment:-
"(a) long pendency of the trial or an appeal after conviction would be a ground
for consideration for grant of bail or suspension of sentence of an accused or a
convict as the case may be in the spirit of Article 21 of the Constitution of
India;
(b) In the case of delay in conclusion of the trial the right is of consideration for
release on bail and not an automatic right of grant of bail. In the consideration
process for the grant of bail on the ground of delay in concluding the trial it
shall have to be seen who was responsible for the delay. In case it is the
accused who has delayed the trial no relief can be granted. In case of delay by
the prosecution, which is oppressive or unwarranted, besides, affecting the
right of an accused under-trial in terms of Article 21, remedial orders including
grant of bail or fixing a time frame for the conclusion of the trial are to be
passed.
(c) In the case of delay in the disposal of the appeal after an order of
conviction, the rule of laying down a condition of undergoing three years or
two years imprisonment post-conviction in the case of females for a life convict
out of a period of five years or four years in the case of females is not absolute.
The convict appellant may show by producing relevant materials including
interim orders of the trial Court that the delay in the conclusion of the trial is
not attributable to him.
(d) While considering the case for release from custody on bail during trial or
suspension of sentence pending an appeal the Court is also to consider –
i. nature of the offence
ii. manner in which the offence occurred
iii. Role attributed to the accused or appellant
iv. Nature of gravity or heinousness of the crime or cruel mode of its
execution
v. Whether a bail earlier granted has been misused
vi. The propensity and potentiality of the accused or the convict indulging
in criminal activities while on bail
vii. The likelihood of a convict prisoner after his conviction to abscond or
being a proclaimed offender
viii. Conduct of an accused or a convict while in jail and in the case of a
convict whether he has misused the concession of parole or furlough
ix. Whether the concession of bail, parole or furlough earlier granted has
been misused
Note – Daler Singh v .State of Punjab – DB of P&H Court framed guidelines
for granting suspension of sentence in cases arising out of NDPS cases (current
case not meeting these criteria). - "(1). Where the convict is sentenced for
more than ten years for having in his conscious possession commercial quantity
of contraband, he shall be entitled to bail if he has already undergone a total
sentenced of six years, which must include atleast fifteen months after
conviction.
[10]. I have considered the arguments raised by both the sides. [11]. According
to Dalip Singh's case (supra) long pendency of trial or an appeal after
conviction is a ground for consideration of suspension of sentence as the
convict has a constitutional right in terms of Article 21 of Constitution of India.
Delay in disposal of appeal even though not an automatic right for the grant of
suspension of sentence, but the same is relevant consideration to protect right
of the accused in terms of Article 21 of Constitution of India, if delay is not
attributable to the accused. The Hon'ble Supreme Court in Legal Aid
Committee v. Union of India, 1994(3) RCR (Crl.) 639 issued directions in the
context of release of persons who have undergone requisite period of sentence.
[12]. Division Bench of this Court in Tule Ram v. State of CRM No.9546 of
2015 in Haryana, 2005(4) RCR (Crl.) 319 has also highlighted the fact that
delay in disposal of appeal is a relevant consideration for suspending the
sentence if the delay is not attributable to the appellant. The Appellate Court
may pass such orders to protect the right of speedy trial guaranteed to the
convict under Article 21 of the Constitution of India.
[15]. Considering the aforesaid facts as argued by learned counsel for the
appellant, this Court feels that out of total sentence of 10 years the applicant
has undergone more than 4 years and 5 months. The appeal is of the year 2014
and would take substantial time to come up for final hearing.
o
Dashrath v. State of Rajasthan - 3 rd appln for suspension of sentence granted. 3.5kg opium.
12 yrs sentence. Applicant sentence undergone – almost 4 yrs
https://www.casemine.com/judgement/in/5d3c9041714d581ec3f0110c
Baljit Singh @ Sonu v. State of Punjab
