Search, seizure, arrest and investigation in violation of Sections 41 and 42 of the ND&PS Act is illegal and the trial on the basis of illegal search, seizure and investigation could be held vitiated: The High Court of Manipur
It is settled that when a convicted person is sentenced to a fixed period of sentence and the appellate Court finds that due to practical reasons the appeal cannot be disposed of expeditiously, it can pass appropriate orders for suspension of sentence. The aforesaid has been laid down by the Manipur High Court in the case of Md. Sahabuddin v. State of Manipur [MC(Cril.Appeal) No.11 of 2019 in Criminal Appeal No.21 of 2019] which was decided by a single judge bench comprising Justice M.V. Muralidaran on 21st June 2021. The facts of the case are as follows. The petitioner, who has been arrayed as first accused in Special Trial Case No.167 of 2018 on the file of the learned Special Judge, ND&amp;PS (FTC), Manipur, was convicted under Section 21(c) 1985 and sentenced to undergo 13 years rigorous imprisonment with a fine of Rs.1,30,000/- under Section 21(c) and to undergo 7 years rigorous imprisonment with a fine of Rs.70,000/- under Section 22(b) of the ND&amp;PS Act. This petition has been filed by the petitioner under Section 389(1) Cr.P.C. praying to suspend the operation of the judgment. It was contended by the counsel for petitioner that there are lot of infirmities in the impugned judgment and that the petitioner has got good case on merits in succeeding the appeal. The learned counsel further submitted that Section 32-A of the ND&amp;PS Act so far as it ousts the jurisdiction of the Court to suspend the sentence imposed on a convict under the Act is unconstitutional and that when a convicted person is sentenced to a fixed period of sentence and when the convict files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances. It was also the submission of the learned counsel for the petitioner that recording of information in writing and the proviso for recording of grounds on his belief while carrying out arrest and search of vehicle are mandatory under Section 42 of the ND&amp;PS Act and consequently, failure to comply with those requirements would vitiate the trial as held by the Hon’ble Supreme Court. The learned Additional Public Prosecutor submitted that the petitioner is not entitled to suspension of sentence, as it is barred by Section 32-A of the Act. He would submit that since the petitioner was convicted under Sections 21(c) and 22(b) of the Act and sentenced to undergo 13 years of rigorous imprisonment and also the petitioner is aged 41 years old, he is not entitled to suspension of sentence.
 IN THE HIGH COURT OF MANIPUR AT IMPHAL MC(Cril.Appeal) No.119 in Criminal Appeal No.219 Md. Sahabuddin@Md. Shahbuddin aged about 41 years S o Md. Nizamuddin resident of LilongTairelMakhong P.O. P.S. Lilong 79513 Thoubal District Manipur. . Applicant s Versus …. Respondent s State of Manipur HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Applicant s Mr. R.S. Reisang Advocate For the Respondent s Mr. Y. Ashang Learned PP Date of Hearing Judgment & Order MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 JUDGMENT &ORDER This petition has been filed by the petitioner under Section 389(1) Cr.P.C. praying to suspend the operation of the judgment and order dated 01.10.2019 and the order of sentence dated 08.10.2019 passed by the learned Special Judge ND&PS Manipur in Special Trial Case No.167 of 2018 and to release the petitioner on bail during the pendency of the appeal. The petitioner who has been arrayed as first accused in Special Trial Case No.167 of 2018 on the file of the learned Special Judge ND&PS Manipur was convicted under Section 21(c) 1985 and sentenced to undergo 13 years rigorous imprisonment with a fine of Rs.1 30 000 under Section 21(c) and to undergo 7 years rigorous imprisonment with a fine of Rs.70 000 under Section 22(b) of the ND&PS Act to be paid within a period of four months from the date of sentence failing which the petitioner shall serve simple imprisonment for a further period of two years. Challenging the conviction and sentence imposed on the petitioner the petitioner has filed the criminal appeal before this Court. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Along with the appeal the petitioner has filed petition seeking to suspend the sentence stating that he has a very good case on merits and likely to succeed the appeal filed by him on the ground that the mandatory provisions as prescribed under Sections 41 and 42 of the ND&PS Act were not complied with by the arresting authority at the time of arrest and seizure of the alleged contraband. The learned counsel for the petitioner submitted that there are lot of infirmities in the impugned judgment and that the petitioner has got good case on merits in succeeding the appeal. He would submit that the petitioner has got family and he has to look after the family. The learned counsel further submitted that the petitioner was in custody during trial and in fact while imposing sentence he was brought from Manipur Central Jail Sajiwa. The learned counsel next submitted that the appeal would not be taken up for hearing in the near future and therefore the petitioner is entitled to suspension of sentence pending appeal and that the petitioner undertakes to abide by the conditions imposed by this MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The learned counsel further submitted that Section 32 A of the ND&PS Act so far as it ousts the jurisdiction of the Court to suspend the sentence imposed on a convict under the Act is unconstitutional and that when a convicted person is sentenced to a fixed period of sentence and when the convicted person is sentenced to a fixed period of sentence and when the convict files an appeal under any statutory right suspension of sentence can be considered by the appellate Court liberally unless there are exceptional It is also the submission of the learned counsel for the petitioner that recording of information in writing and the proviso for recording of grounds on his belief while carrying out arrest and search of vehicle are mandatory under Section 42 of the ND&PS Act and consequently failure to comply with those requirements would vitiate the trial as held by the Hon’ble Supreme Court. In the instant case the arresting authority has violated the mandatory provision provided under the Act. The learned counsel then submitted that the provisions under Sections 41 and 42 are meant basically to protect an individual against the false implication by the arresting authority and if this MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 protection is sought to be denied by the arresting authority then this is one of the reasons which can lead this Court may come to a prima facie but reasonable satisfaction that the petitioner might not had been involved in the crime alleged. The learned counsel further submitted that the petitioner was in custody during trial and in fact while imposing sentence he was brought from the jail. The learned counsel for the petitioner then submitted that in similar circumstances this Court suspended the sentence and released the accused on bail. According to the learned counsel for the petitioner the petitioner was on bail during trial and he had fully co operated in the trial by putting his personal appearance in almost all the hearing dates fixed by the learned Special Judge and he never violated any terms and conditions of his releasing on bail during the whole proceedings of the trial. The learned counsel for the petitioner urged that the detention of the petitioner during pendency of the appeal is a severe punishment to all his family members and prays for suspension of MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 sentence pending appeal. In support the learned counsel for the petitioner relied upon the following decisions: Kailash Chowdhury v. State of Assam 2001 GLT 184. Beikhokim alias VeikhokinKukini v. State of Manipur 1996(II) GLT 449 FB. iii) Roy V.D. v. State of Kerala 8 SCC 590. iv) Sukhdev Singh v. State of Haryana 2 SCC Per contra the learned Additional Public Prosecutor submitted that the petitioner is not entitled to suspension of sentence as it is barred by Section 32 A of the Act. He would submit that since the petitioner was convicted under Sections 21(c) and 22(b) of the Act and sentenced to undergo 13 years of rigorous imprisonment and also the petitioner is aged 41 years old he is not entitled to suspension of sentence. The learned Additional Public Prosecutor further submitted that the High Court cannot override the bar provided under Section 32 A of the Act and that the petitioner is not entitled to the benefit of Section 389 Cr.P.C. and therefore the benefit cannot be extended to MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The learned Additional Prosecutor then submitted that there are various situations such as chance discovery or discovery of contraband during the normal routine frisking etc. where compliance of the provisions of Sections 41 and 42 is not required and in this regard the law is well settled. He would submit that unless the matter is considered on merits one cannot jump to a conclusion that the petitioner has a good case to succeed the appeal merely on the ground that he had raised this issue in the grounds of appeal. The learned Additional Public Prosecutor next submitted that there is no illegality and infirmity in passing the impugned judgment and the consequential sentence and therefore the question of suspension of the said judgment and order and its sentence does not arise at this stage. Further the learned Additional Public Prosecutor submitted that the petitioner is not entitled to release on bail during the pendency of the appeal at this early stage in order to maintain the balance of rules of law vis à vis public confidence on judiciary and personal liberty of the convict. This Court considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The petitioner was convicted under Section 21(c) and 22(b) of the ND&PS Act 1985 and sentenced to undergo rigorous imprisonment of 13 years and to pay a fine of Rs.1 30 000 under Section 21(c) and 7 years rigorous imprisonment and to pay fine of Rs.70 000 under Section 22(b) in default to undergo two years simple imprisonment. The judgment of the learned Special Judge is dated 01.10.2019 and sentence was imposed on 08.10.2019 and from 08.10.2019 onwards the petitioner was in jail. instant case the petitioner challenged judgment of the learned Special Judge on various grounds as could be seen from the grounds of appeal. The petitioner has raised a ground that the learned Special Judge failed to appreciate the law laid down by the Apex Court qua arrest and search by an officer not empowered or authorized. The petitioner has also raised a ground that the informant P.W.3 has stated that he did not give information in writing to his immediate superior regarding the search of the vehicle and the arrest of four persons under Section 42 of the Act which is mandatory and consequently the failure to comply with the requirement would vitiate the trial. The petitioner also challenged the impugned judgment on the ground that the trial Court erred in convicting the petitioner under MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Section 21(c) of the Act as the seized contraband are controlled substance and not narcotic drugs and as such the impugned judgment and sentence are liable to be set aside. In Kailash Chowdhury the Gauhati High Court held that search seizure arrest and investigation in violation of Sections 41 and 42 of the ND&PS Act is illegal and the trial on the basis of illegal search seizure and investigation held vitiated. In Beikhokim(supra) the Full Bench of Gauhati High Court held as under: “14. On the question whether recording of the information in writing as required u s 41(1) is mandatory or not reference may also be made to sub section of Section 42 which provides that where an officer takes down any information in writing under sub section or record grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate superior official. The provision clearly brings out intention of the legislature to make the aforesaid provision under Section 42(1) regarding recording of the information if any in writing to be mandatory. In fact in the last sub paragraph of paragraph 15 of the judgment of Balbir Singh’s case Supreme Court clearly observed in unqualified and unambiguous the aforesaid MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 requirement of Section 42(1) is mandatory. Supreme Court in that case observed as follows: “The object of NDPS Act is to make stringent provision for control and regulation of operations relating to those drugs and substances. At the same time to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers certain safeguards are provided which in the context have to be observed strictly. Therefore those provisions make it obligatory that such of those officers mentioned therein on receiving an information should reduce the same to writing and also record reasons for the relief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with those requirements thus affects the prosecution case and therefore vitiates the trial.” In Roy V.O.the Hon’ble Supreme Court held: “14. Sub section of Section 42 contains a procedural directive to the officer who take sdown any information in writing under sub sectionor records grounds for his belief under the proviso thereto to send forthwith a copy thereof to his immediate official superior.” MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 In Sukhdev Singh the Hon’ble Supreme Court “25. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non compliance thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purposes of the provisions of Section 42 which an broadly be stated are that: it is mandatory provision which ought to be construed and complied with strictly and compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post recovery sic prior It appears that the main ground urged by the petitioner for setting aside the impugned judgment is that the mandatory provisions as prescribed under Section 41 and 42 of the ND&PS Act were not complied with by the arresting authority at the time of arrest and seizure of the alleged contraband. At this stage the said aspect of the matter cannot be gone into as the same would involve arguments coupled with the judicial pronouncements in this regard. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Now the point that arises for consideration is whether the petitioner is entitled to suspension of sentence imposed on him by the learned Special Judge pending appeal. The learned counsel for the petitioner contended that the appeal would not be taken up for hearing in the near future and the petitioner has got family and he has to look after his family. Under Section 32 A of the ND&PS Act no sentence awarded under the Act shall be suspended or remitted or commuted. However the Hon’ble Supreme Court in Dadu alias Tulsidas v. State of Maharashtra 8 SCC 437 held that Section 32 A is unconstitutional to the extent it takes away the right of the Court to suspend the sentence of a person convicted under the Act. In the said decision the Hon’ble Supreme Court held that taking away of the right of the executive to suspend remit and commute sentences under the Act is valid. The said decision further clarifies that the appellate Court can suspend sentence imposed under the Act subject to the conditions set out in Section 37 of the Act. At this juncture it is apposite to refer Section 37 of the Act which reads thus: MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 “37. Offences to be cognizable and non bailable : Notwithstanding anything contained in the Code of Criminal every offence punishable under this Act shall be Procedure 1973: cognizable no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and the Public Prosecutor oposes application 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. The limitations on granting of bail specified in clause of sub section are in addition to the limitations under the Code of Criminal Procedure 1973 or any other law for the time being in force on granting bail.” In Dadu alias Tulsidar(supra) the Hon’ble Apex Court MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 “25. Judged from any angle the section insofar as it completely debars the appellate courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32 A insofar as it ousts the jurisdiction of the court to suspend the sentence awarded to a convict under the Act unconstitutional. We are therefore of the opinion that the Allahabad High Court in Ram Charan case9 LCD 160 All) has correctly law relating constitutional validity of the section and the judgment of the Gujarat High Court in Ishwar Singh M. Rajput case 2 Guj LR 1365 cannot be held to be good law.” It is settled that when a convicted person is sentenced to a fixed period of sentence and the appellate Court finds that due to practical reasons the appeal cannot be disposed of expeditiously it can pass appropriate orders for suspension of sentence. In Bhagwan Rama ShindeGosai and others v. State of Gujarat 4 SCC 421 the Hon’ble Supreme Court held: “3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 against suspension of sentence it is a different matter. Similarly when the sentence consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility be efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern the matter of suspending the sentence so as to make the appeal right meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.” In Union of India v. Ram Samujh and another 9 SCC 429 the Hon’ble Supreme Court held that the jurisdiction of the Court to grant bail is circumscribed by the aforesaid Section of the Act. The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which he is convicted and he is not likely to commit any offence while on bail and during the period of suspension of sentence. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 In the instant case the appellant challenged the judgment of the learned Special Judge on various grounds as could be seen from the grounds of appeal and the petitioner has got arguable case. It is to be noted that there are two accused in this case and the learned Special Judge acquitted the second accused from the charges. Anyhow this Court is not concerned with the merits of the appeal and the concern is only with regard to the point whether the petitioner is entitled to suspension of sentence pending appeal. As stated supra the Hon’ble Supreme Court in the case of Bhagwan Rama ShindeGosai(supra) held that the prayer for suspension of sentence pending appeal should be considered liberally unless there is any statutory restriction. As per the decision of the Hon’ble Supreme Court in the case of Dadu alias Thulsidas(supra) Section 32 A of the ND&PS Act does not in any way affect the powers of the authorities to grant parole and a sentence awarded under the Act can be suspended by the appellate Court. Where an appeal is preferred against conviction under the ND&PS Act in the High Court the High Court has ample power and discretion to suspend the sentence. That discretion has to be exercised judiciously depending upon the facts and circumstances of MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 each case. While considering the suspension of sentence each case has to be considered on the basis of the nature of the offence the manner in which the occurrence had taken place whether bail granted earlier had been misused. There was no straitjacket formula which could be applied in exercising discretion and the facts and circumstances of each case would govern the exercise of judicious discretion while considering an application filed by a convict under Section 389 Cr.P.C. In the instant case the appeal is of the year 2019 and due to practical reasons the appeal cannot be taken up in the near future and disposed of expeditiously. Therefore this Court finds that this is a fit case to suspend the sentence imposed on the petitioner pending appeal however subject to stringent conditions. As stated supra in the light of the decision of the Hon’ble Supreme Court the case of Bhagwan Rama ShindeGosai(supra) and the fact that the present appeal would take substantial time to come up for final hearing without expressing any opinion on the merits of the appeal this Court is inclined to suspend the sentence imposed on the appellant. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 Accordingly the sentence imposed on the petitioner in Special Trial Case No.1618 dated 08.10.2019 on the file of the learned Special Judge ND&PS Manipur alone is suspended subject to the compliance of the following conditions by the petitioner: The petitioner is directed to be released on bail on his furnishing a personal bond for Rs.1 lakh with two sureties in the like sum to the satisfaction of the learned Special Judge ND&PSManipur. The petitioner on his being enlarged on bail is directed to reportbefore the learned Special Judge ND&PS FTC) Manipur on all Tuesdays and Fridays at 10.00 A.M. till the disposal of the appeal pending before this 10.00 A.M. The petitioner shall also report before the Border Affairs Police Station on the first Monday of every month at The petitioner shall not indulge in any criminal activities during the period of suspension of sentence. MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 The Border Affairs Police is directed to monitor the petitioner and if they find the petitioner involved in any criminal activities the Border Affairs Police is at liberty to bring it to the notice of this Court through the Public The petitioner shall not leave the jurisdiction of the In case of violation of any condition the prosecution may ask for cancellation of bail. It is made clear that this Court has not delved into the merits of the appeal. Registry is directed to issue copy of this order to both the parties through their whatsapp e mail. Larson MC(Cril. Appeal) No.119 Ref: Criminal Appeal No.219 