Petitioner convicted under NDPS Act sought suspension of sentence pending appeal. Court held Section 436(A) inapplicable as sentence exceeded half-maximum limit. Considering long pendency and time served, sentence suspended with bail on bond.
Sentence imposed on petitioner is suspended and bail is granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CRL MP(MD) No.5363 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 29.09.2023
PRONOUNCED ON : 03.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE P.DHANABAL
Crl. M.P. (MD) No.5363 of 2019 in Crl. A.(MD) No.475 of 2017
B. Kaliyugakannan ... Petitioner / Accused No.2
(Accused in Jail)
Vs.
State represented by: The Intelligence Officer, NCB South Zonal Unit,, Chennai.
[NCB F. No.48/1/02/2015/NCB-MDU] ... Respondent/Complainant
PRAYER CRL MP(MD)No.5363 of 2019: Criminal Miscellaneous petition has been filed under Section 389(1) of Criminal Procedure Code, praying to suspend the sentence imposed against the petitioner / 2nd accused in C.C. No.131 of 2015 on the file of the learned Additional District and Sessions Judge / Presiding Officer, Special Court for EC&NDPS Act Cases, Pudukottai dated 06.10.2017 and release the petitioner on bail till the disposal of the appeal.
PRAYER IN Crl. A.(MD) No.475 of 2017:
To take this file an appeal call for records relating to judgment in C.C.No.131 of 2015 dated on 06.10.2017 on the file of the Additional District Sessions Judge/Presiding Officer Special Court for E.C. And NDPS Act Case, Pudukkotai and set aside the same and acquit the Appellant from all charges framed against him and thus render justice.
For Petitioner : Mr. S. Murugendran, Advocate For Respondent : Mr. C. Arulvadivel @ Sekar, Senior Counsel / Special Public Prosecutor [for NCB Cases]
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ORDER
CRL MP(MD) No.5363 of 2019
This Criminal Miscellaneous Petition in Crl. M.P. (MD) No.5363 of 2019 has been filed by the petitioner / 2nd accused to suspend the sentence imposed against him in C.C. No.131 of 2015 on the file of the learned Additional District and Sessions Judge / Presiding Officer, Special Court for EC&NDPS Act Cases Pudukottai dated 06.10.2017 and release the petitioner on bail till the disposal of the appeal in Crl. A. (MD) No.475 of 2017.
completed at 23.30 hours. Thereafter the accused were arrested and FIR was https://www.mhc.tn.gov.in/judis
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registered. Thereafter, investigation was conducted by the investigating officer and then final report was filed against the accused for the contravention of provisions of Section 8(c) r/w 22, 28 and 29 of the NDPS Act as amended and are punishable under Sections 22, 28 and 29 of the NDPS Act, as amended. The trial court had taken cognizance in C.C. No.131 of 2015 and charges were framed against the accused for the offence under Section 8(c) r/w 22, 28 and 29 of the NDPS Act as amended. Thereafter, the prosecution had examined PW1 to PW7 and marked Ex.P.1 to Ex.P.39 and M.O.1 to 11. Thereafter, the trial court has acquitted the accused A1 to A3 from the charge under Section 8(c) r/w 28 of NDPS Act and further convicted the accused A1 to A3 for the offences under Section 8(c) r/w 22(c) and 29 of NDPS Act 1985 and sentenced to undergo Rigorous Imprisonment for 12 years each and to pay a fine amount of Rs.1,00,000/- each. In default, to undergo Rigorous Imprisonment for three years and the above sentences imposed shall run concurrently.
independent witness, who turned hostile. Ex.P.5 Mahazar, was not prepared in the https://www.mhc.tn.gov.in/judis
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place of occurrence and witnesses were included in the Mahazar at later point of time. Further the petitioner was not in possession of contraband at the time of arrest and the petitioner does not have any previous case and further the alleged contraband seized on 24.05.2015 and the same was produced before the Judicial Magistrate on 26.05.2015 with a delay and the same has not been explained by the prosecution and further the petitioner was taken into custody by the police on 24.05.2015 and he was produced before the learned Magistrate on 26.05.2015 and the seized contraband was not weighed in the spot and the same was weighed at the office of the police station. The mandatory provisions of NDPS Act have not been followed by the prosecution and the trial court has failed to consider the above said aspects. Therefore the conviction and sentence imposed by the trial court on the accused are to be set aside and the petitioner is entitled for acquittal and thereby, this Court may be pleased to suspend the sentence in respect of the conviction and sentence passed as against the petitioner/accused till the disposal of the criminal appeal.
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respondent would submit that the A1 have transported Alprazolam contraband in a jute bag and handed over the same to A2 and A3 to sell the said contraband and thereby they have charged for the offence under Section 8(c) r/w 22, 28 and 29 of NDPS Act. After full trial, the trial court has convicted the accused for the offence under Section 8(c) r/w 22(c) and 29 of NDPS Act 1985 and sentenced to undergo Rigorous Imprisonment for 12 years each and to pay a fine amount of Rs.1,00,000/for each charge. In default, to undergo Rigorous Imprisonment for three years and further acquitted the accused from the charge under Section 8(c) r/w 28 of NDPS Act. As far as the grounds raised by the petitioners that it is well settled law that the Courts must be circumspect while drawing adverse inference against the accused in cases pending trial and under investigation, however, the attitude of the prosecution witnesses in turning hostile, after deposing clearly in chief corroborating the oral and documentary evidence, necessitates this Court to deviate from the well accepted judicial thinking and traverse on a different line, as the need of the hour necessitates a different way of thinking for the benefit of the society at large. Hence the mere fact that the independent witness has turned hostile is not a ground for acquittal. As far
as the compliance of Section 42 of NDPS Act is concerned, in the instant case, Section https://www.mhc.tn.gov.in/judis
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42 of NDPS Act, is not applicable and only Section 43 of NDPS Act would be applicable as the seizure and arrest took place in the public place. In this context, PW1 has categorically deposed about the place of seizure and arrest. Therefore there is no violation of procedures under Section 43 of NDPS Act. The prosecution witnesses have categorically deposed about the secret information received from the informant and then the police party went to the place, searched the accused and seized the contraband and thereafter the accused were arrested and after arrest and seizure of property, a detailed report was sent to the higher authorities and thereby, the prosecution has followed the mandatory procedures under the NDPS Act and there is no violation of the procedures.
therefore the petitioner's case cannot be considered under Section 436(A) of Cr.P.C. https://www.mhc.tn.gov.in/judis
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convicted for the offence under Section 8(c) r/w 22(c) and 29 of NDPS Act 1985 and sentenced to undergo Rigorous Imprisonment for 12 years each and to pay a fine amount of Rs.1,00,000/- each and he had already served more than 8 years and thereby, he is entitled for the benefit under Section 436(A) of Cr.P.C. In order to support his contention, the learned counsel for the petitioner has relied upon the following judgment in:
Satender Kumar Antil v. Central Bureau of Investigation and another reported in 2022 LiveLaw (SC) 577 -
Wherein, the Hon'ble Supreme Court in Para Nos.42, 43, 44, 45, 46 and 64, has held as follows:-
“42. Section 389 of the Code concerns itself with circumstances pending appeal leading to the release of the appellant on bail. The power exercisable under Section 389 is different from that of the one either under Section 437 or under Section 439 of the Code, pending trial. This is for the reason that “presumption of innocence” and “bail
is the rule and jail is the exception” may not be available to the https://www.mhc.tn.gov.in/judis
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appellant who has suffered a conviction. A mere pendency of an appeal per se would not be a factor.
Section 436A of the Code
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detained – Where a person has, during the period of investigation, inquiry or trial under this Code of an offefnce under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation.__ In computing the period of detention under this Section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.
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has to be reckoned with the custody of the accused during the investigation, inquiry or trial. We have already explained that the word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a long time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.
as we are dealing with the liberty of a person. We do feel that more
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the rigor, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code”.
(A) of Cr.P.C., half of the period of sentence has to be served by the under-trial https://www.mhc.tn.gov.in/judis
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prisoner. Here the maximum sentence prescribed for the offence under Section 22(c) of NDPS Act is 20 years and the petitioner has completed only around 9 years and thereby, the contention of the learned counsel appearing for the petitioner that he is entitled for the benefit of Section 436(A) of Cr.P.C., is not an acceptable one. However the case is pending for more than 8 years and the petitioner also filed this application for suspension of sentence in the year 2019 and the same is pending for more than 4 years. The petitioner has served sentence period around 9 years ie., ¾ period of sentence awarded by the trial court and no previous cases are pending against this petitioner.
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13(a) The petitioner shall execute a bond for a sum of Rs.1,00,000/(Rupees One Lakh only) with two sureties each for a like sum to the satisfaction of
the Court of Additional District and Sessions Judge / Presiding Officer, Special Court for EC&NDPS Act Cases, Pudukottai District.
13(b) The petitioner shall appear before the trial court on all working days
at 10.30 a.m. until further orders.
sd/03/11/2023
09/11/2023 Sub-Assistant Registrar (C.S. ) Madurai Bench of Madras High Court, Madurai - 625 023.
mjs
To
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CRL MP(MD) No.5363 of 2019
4.THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.
ORDER IN CRL MP(MD) No.5363 of 2019 IN CRL A(MD) No.475 of 2017 Date :03/11/2023
RK (09/11/2023) 15P / 5C
Madurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023
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3 issues framed by the court
Whether the petitioner, a convict who has served nearly three-quarters of his sentence, is entitled to suspension of sentence pending the disposal of his appeal.
Whether the petitioner is entitled to the benefit of Section 436(A) of the Code of Criminal Procedure claiming release on personal bond after serving half the maximum punishment.
Whether prima facie grounds exist to acquit the petitioner necessitating suspension of sentence despite the pendency of the main appeal.
Colour shows how this judgement treated each authority
Satender Kumar Antil v. Central Bureau of Investigation and anotherExplained¶56
Satender Kumar Antil v. Central Bureau of Investigation and another reported in 2022 LiveLaw (SC) 577
3 provisions across 2 enactments
B. Kaliyugakannan
State represented by The Intelligence Officer, NCB South Zonal Unit, Chennai
P. Dhanabal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
