The Bombay High Court at Goa allowed an application for suspension of sentence and bail filed by a Nigerian national convicted under Section 21(c) of the NDPS Act in a case involving alleged recovery of 309 grams of cocaine from a house in Goa. The Court noted that the applicant had already undergone approximately six years and four months out of the ten-year sentence, had raised arguable issues on conscious possession, and that the appeal was unlikely to be heard before he completed the sentence.
Court’s Decision
The Court suspended the sentence imposed by the Additional Sessions Judge, Mapusa, and directed the applicant’s release on bail subject to strict conditions.
The Court held that the applicant had made out a case for suspension of sentence pending appeal, especially since:
- He had already undergone more than half of the fixed sentence.
- The appeal involved examination of 698 pages of evidence and 13 witnesses.
- The appeal was not likely to be heard before completion of the sentence.
- The applicant had raised arguable questions on conscious possession.
- He had no previous criminal antecedents apart from the present conviction.
The Court therefore suspended the sentence until final disposal of the appeal, subject to deposit of ₹50,000 towards partial fine amount and execution of PR bond of ₹25,000 with two sureties.
Facts
The prosecution case was that on 31 December 2019, acting on source information, police raided a house in Goa. The applicant was found in the house. On search, the police allegedly recovered 309 grams of cocaine, which was attached under panchnama.
A polythene pack containing green-coloured paste suspected to be MDMA, weighing 200 grams, was also found. However, the chemical analyser’s report showed that the alleged substance tested negative for MDMA.
An FIR was registered against the applicant for offences under Section 21(c) of the NDPS Act. After trial, the Additional Sessions Judge, Mapusa convicted him and sentenced him to 10 years’ rigorous imprisonment, fine of ₹1,00,000, and in default, simple imprisonment for six months.
The applicant challenged the conviction in appeal and filed the present application seeking suspension of sentence and release on bail.
Issues
The principal issues before the Court were:
- Whether the applicant’s sentence should be suspended pending disposal of the appeal.
- Whether the long period of custody already undergone justified release on bail in a fixed-term sentence case.
- Whether arguable issues existed regarding conscious possession of the contraband.
- Whether the applicant being a foreign national was a sufficient reason to deny bail.
Applicant’s Arguments
The applicant submitted that he had been in custody since 31 December 2019, and had already undergone more than six years of imprisonment, which was more than half of the ten-year sentence.
It was argued that the appeal was pending and, considering the pendency before the Court, it was unlikely to be heard within a reasonable time.
On merits, the applicant argued that the prosecution had failed to prove conscious possession. The house from where the contraband was recovered was allegedly rented to a Russian national, and the applicant was neither the owner nor shown to have exclusive control over the premises.
The applicant relied on the evidence of PW-11, the owner of the house, who confirmed that the house had been given on rent to a Russian lady. The applicant argued that the prosecution did not examine the said Russian tenant, though her statement was recorded and made part of the supplementary chargesheet.
It was further submitted that except for the applicant’s presence at the time of raid, there was nothing to show that he had control over the premises, access to keys, or knowledge of the contraband.
The applicant also relied on Supreme Court judgments holding that in fixed-term sentence cases, suspension of sentence can be considered liberally when the appeal is not likely to be heard before completion of sentence.
Prosecution’s Arguments
The State opposed the application mainly on two grounds.
First, it was submitted that the applicant was a foreign national and, if released on bail, he may flee the country or misuse liberty.
Second, the State argued that the contraband was of commercial quantity and that the prosecution had proved conscious possession. The State relied on the evidence of PW-11 and PW-7, who had conducted the seizure panchnama.
It was argued that when the raiding party reached the premises, the door was opened by the applicant, and his presence in the premises was not satisfactorily explained. According to the State, an adverse inference could therefore be drawn against him.
Analysis Of The Law
The Court considered the law on suspension of sentence in fixed-term conviction cases.
The Court referred to Bhagwan Rama Shinde Gosai v. State of Gujarat, where the Supreme Court held that when a convicted person is sentenced to a fixed period and files a statutory appeal, suspension of sentence can be considered liberally unless exceptional circumstances exist.
The Court also referred to Angana v. State of Rajasthan, where the Supreme Court held that suspension of sentence is a discretionary power that must be exercised judicially, depending on facts such as nature of offence, manner of occurrence, and whether bail was earlier misused.
The Court further relied on Narcotic Control Bureau v. Lakhwinder Singh, where the Supreme Court held that even in NDPS matters, if an accused has undergone a substantial part of the sentence and the appeal is unlikely to be heard before completion of sentence, continued incarceration may violate Article 21 and defeat the right of appeal.
The Court also referred to Atul @ Ashutosh v. State of Madhya Pradesh, where the Supreme Court observed that where fixed-term sentence appeals are unlikely to be heard before completion of sentence, normally suspension of sentence and bail should be granted in deserving cases.
Precedent Analysis
The Court applied the principle that delay in hearing an appeal is a relevant factor in considering suspension of sentence, particularly when the sentence is for a fixed term.
The Court noted that the applicant had already undergone approximately six years and four months out of the ten-year sentence. Therefore, if bail was denied and the appeal was not heard expeditiously, the applicant may complete the entire sentence before his appeal is decided.
The Court also considered the judgment in Obineri Sopuru Isaiah v. State Police Inspector, where directions were issued for bail applications filed by foreign nationals, including disclosure of passport details, visa status, address in India, contact details, funds, and family details. The Court noted that the applicant had furnished the required information.
Court’s Reasoning
The Court found that the applicant had raised arguable questions on law and facts regarding conscious possession.
The Court considered that the contraband was not recovered from the person of the applicant, but from a house. The house was stated to be rented to a Russian national. The owner of the house had confirmed this fact. The prosecution had not examined the said tenant, despite recording her statement.
The Court therefore held that the argument that the prosecution had not proved conscious possession beyond reasonable doubt required consideration in appeal.
The Court also noted that the appeal had already been admitted, and the record and proceedings had been called for. Since the evidence ran into about 698 pages and the depositions of 13 witnesses required consideration, the appeal was unlikely to be heard before completion of the applicant’s sentence.
The Court also took into account that the applicant was a first-time offender, had no adverse criminal antecedents apart from the present conviction, and had a valid passport.
Bail Conditions
The Court suspended the sentence subject to strict conditions, including:
- Deposit of ₹50,000 towards partial fine amount before the Additional Sessions Judge, Mapusa.
- Execution of PR bond of ₹25,000 with two sureties in the like amount.
- Production of valid passport and visa.
- If the applicant does not possess valid visa, liberty to apply for the same from jail, if such facility is provided.
- Copy of passport and visa to be placed before the Registry of the High Court.
- Registration with the Foreigners Regional Registration Office, Goa, within two weeks of release.
- Disclosure of residence address with valid proof and immediate intimation of any change.
- Filing of affidavit before the Additional Sessions Judge, Mapusa, disclosing source of funds and source of income in India, including bank accounts.
- Direction not to leave the State of Goa without prior permission of the Court until conclusion of the appeal.
The Court clarified that violation of any condition would make the applicant liable for cancellation of bail.
Conclusion
The Bombay High Court at Goa allowed the application and suspended the applicant’s sentence pending appeal.
The Court held that the applicant had undergone more than half of the ten-year fixed sentence, had raised arguable issues on conscious possession, and that the appeal was unlikely to be heard before completion of sentence. The Court therefore found it fit to release him on bail subject to strict conditions, especially considering his status as a foreign national.
