VINOD KUMAR Vs. S K SRIVASTAVA INTELLIGENCE OFFICER

JUDGEMENT

(1.) .This is an application under Section 389 Cr.P.C. for suspension of sentence and grant of bail. The appellant-accused persons namely Vinod Kumar and Jaspal Singh have been convicted for offence punishable under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and have been awarded 20 years RI and fine of Rs.2 lacs each in default of payment of fine RI for 1 (one) year under Section 21 (C) of the NDPS Act and 20 years of RI and fine of Crl.A.No.703-04/2005 Page 1 of 10 Rs. 2 lacs each and in default of payment of fine further RI for 1 (one) year under Section 23 (C) of the NDPS Act and also RI for 10 years and fine of Rs.1 (one) lakh each and in default of payment of fine further RI for 6 months under Section 29 of the NDPS Act.

(2.) I have heard Shri Harjinder Singh, Sr. Advocate, learned counsel for the applicant and Shri Ashish Aggarwal, learned counsel for the respondent-State and have gone through the impugned judgment, order on sentence and copies of the documents placed on the file. Briefly the facts are that the Intelligence Officer of Directorate of Revenue Intelligence received information about transportation of narcotic drugs in two trucks bearing registration Nos. HR-29A-0705 and DL-IG-A- 9499. Both the trucks were seized and taken to the office of Directorate of Revenue Intelligence. Two independent witnesses were called. Applicant Jaspal Singh @ Jassa was driving truck No.DL-1G-9499. Applicant Vinod Kumar introduced himself as owner of the truck. The applicants agreed for search of the truck in the presence of a gazetted officer. These proceedings were reduced into writing. Accordingly, the truck was searched. During the search, one spare Crl.A.No.703-04/2005 Page 2 of 10 diesel tank was found fitted into writing. On opening a special cavity was found. Small 34 packets were recovered from that cavity. Each packet was found wrapped with adhesive tapes. On removing the tapes, white cloth pouch was found. On opening the cloth pouch, heat sealed polythine packet was seen and in that packet there was brown powder emanating pungent smell. The brown powder tested as heroin. 65.765 kilograms of heroin was found in his truck.

(3.) The prosecution examined 17 witnesses. Learned counsel for the appellant has submitted that there is non-compliance of provisions of the NDPS Act and the prosecution has failed to prove the applicants' conscious possession of the contraband. Further, the applicants were arrested on 31.1.1997 and since then they are in judicial custody i.e. for more than 8 years and 6 months and since the appeal has not been heard, the appellants are entitled to bail. It is further argued that provisions of Section 32-A of NDPS Act are ultrawires. Learned counsel for the applicant has cited the case titled Dadu @ Tulsi Das v. State of Maharashtra reported in 2000 Cr. LJ 4619 (SC). In the said judgment , the Supreme Court of India has Crl.A.No.703-04/2005 Page 3 of 10 opined that so far as Section 32-A takes away the power of the executive under Section 432 and 433 of the Code of Criminal Procedure to suspend, remit or commute the sentence, the said provisions are unconstitutional. But the powers of the court cannot be curtailed specially when there is no possibility of early disposal of the appeal. The courts have power to suspend the sentence and grant interim relief. I may say that there is no quarrel about this legal position. But the court has to see whether the case for suspension of sentence is made out, in this case.