Court’s Decision
The Delhi High Court, in a judgment authored by Justice Ravinder Dudeja, dismissed the plea of an appellant seeking suspension of sentence and interim bail during the pendency of his appeal against conviction under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The Court observed that the offence involved possession of a commercial quantity of ganja (25.086 kg) and reiterated that, in narcotics cases, suspension of sentence cannot be granted as a matter of course. Citing the Supreme Court’s decisions in Jamnalal v. State of Rajasthan and Shivani Tyagi v. State of U.P., the Court held that “suspension of sentence is the exception, not the rule”, and that the appellate court must first ascertain if there exists a prima facie case indicating a fair chance of acquittal before granting such relief.
Accordingly, the Court found no exceptional circumstances warranting suspension of the sentence and refused bail, directing that the appeal be listed for hearing in due course.
Facts
The appellant was convicted by the Special Judge (NDPS), Shahdara, for possessing two bags containing 25.086 kg of ganja, a commercial quantity under the NDPS Act. A co-accused was found with 20.588 kg of ganja. The incident occurred on 22 June 2022, when both were apprehended near Kalyan Hospital, Seemapuri.
After trial, both were sentenced to 10 years of rigorous imprisonment and fined ₹1,00,000 each, with a default sentence of six months’ imprisonment. The appellant challenged the conviction and sentence before the Delhi High Court and simultaneously sought suspension of the sentence under Section 389(1) of Cr.P.C. (now Section 430 of BNSS, 2023), pending appeal.
Issues
The High Court examined one central issue:
Whether the appellant convicted under the NDPS Act for possession of commercial quantity of ganja was entitled to suspension of sentence and bail during pendency of his appeal?
Petitioner’s Arguments
Counsel for the appellant argued that the conviction was based on conjecture and procedural irregularities. It was submitted that the case relied solely on police testimony with no independent witnesses, despite recovery occurring in a public area. The defence pointed out that no CCTV footage, videography, or photographs were produced even though cameras were installed in the vicinity.
It was further contended that the sampling and forwarding of contraband for FSL examination were delayed, contrary to Section 52A of the NDPS Act, thereby vitiating the chain of custody. The appellant maintained that these procedural lapses undermined the fairness of the trial and violated Articles 14 and 21 of the Constitution.
It was also highlighted that the co-accused had been granted bail during trial (on 11 November 2024), and that the appellant had already spent nearly three years in custody with a “satisfactory” conduct report. The defence urged that the appeal raised substantial questions of law and fact, was unlikely to be heard soon, and that continued detention would cause grave injustice.
Respondent’s Arguments
The State opposed the plea, arguing that the offence was grave and had a significant impact on society. It asserted that the appellant was caught with commercial quantity, thereby attracting the stringent rigours of the NDPS Act.
The prosecution argued that the trial court had convicted the appellant after thoroughly evaluating consistent testimonies, seizure memos, and FSL reports, which conclusively established guilt. It emphasized that mere delay in appeal hearings or length of incarceration cannot justify suspension of sentence, particularly in narcotics offences where the presumption of innocence no longer operates post-conviction.
Analysis of the Law
The Court reaffirmed that suspension of sentence is not a right but a judicial discretion, guided by the nature and gravity of the offence, the quantum of contraband, and the likelihood of success in appeal.
Justice Dudeja observed that the appellant’s possession of 25.086 kg of ganja squarely fell within the definition of commercial quantity, attracting the minimum mandatory punishment under the NDPS Act.
Citing precedents, the Court clarified that non-joining of public witnesses does not automatically discredit the prosecution’s case when police testimony is cogent and consistent. The absence of CCTV footage, videography, or public witnesses was found insufficient to invalidate recovery, especially since the seizure was well-documented and occurred at 3 a.m.
The Court held that the bail granted to co-accused before conviction was irrelevant after final adjudication, as the presumption of innocence no longer applied once guilt was established.
Precedent Analysis
- State v. Sunil [(2001) 1 SCC 652] — Held that evidence of police officials, if credible, does not require corroboration by public witnesses.
- Ajmer Singh v. State of Haryana [(2010) 2 SCR 785] — Established that non-joining of independent witnesses is not fatal if reasonable efforts were made.
- Rohtas v. State of Haryana [JT 2013 (8) SC 181] — Recognized police testimony as reliable unless mala fides are shown.
- Shivani Tyagi v. State of U.P. [2024 SCC OnLine SC 842] — Declared that in serious offences, “suspension of sentence should be an exception, not the rule.”
- Sonadhar v. State of Chhattisgarh [2021 SCC OnLine SC 3182] and Saudan Singh v. State of U.P. [2021 SCC OnLine SC 3259] — Held that suspension may be considered only after 50% of the sentence is served.
- Jamnalal v. State of Rajasthan [2025 INSC 935] — Reiterated that while considering suspension, the court must assess if there exists a “fair chance of acquittal” based on apparent or gross errors in the record.
Applying these principles, the Court found that the appellant had undergone only 3 of 10 years’ imprisonment, falling short of the 50% benchmark. No compelling reason or palpable error was shown to suggest a likelihood of acquittal.
Court’s Reasoning
The Court concluded that the offence involved commercial quantity, the minimum sentence prescribed was severe, and the statutory embargo under Section 37 NDPS Act prohibited leniency unless twin conditions—reasonable grounds for acquittal and non-likelihood of re-offending—were satisfied.
It held that none of these conditions were met. The High Court found the conviction based on credible evidence, with no apparent infirmity, and emphasized that mere pendency of appeal or length of incarceration cannot justify suspension in NDPS cases.
Justice Dudeja quoted the Supreme Court’s observation that post-conviction, the presumption of innocence stands erased, and the appellate court must find “something palpable or gross” to justify suspension — which was absent in this case.
Conclusion
The Delhi High Court dismissed the appellant’s plea, holding that:
- The recovery was of commercial quantity of ganja.
- The appellant had served only 30% of the sentence.
- There were no exceptional circumstances or substantial errors in the trial court’s findings.
Accordingly, the Court refused to suspend the sentence and directed that the appeal be listed in due course.
Justice Dudeja concluded by clarifying that the findings were confined solely to the question of suspension and would not prejudice the merits of the pending appeal.
Implications
This ruling reinforces the judiciary’s consistent stand that NDPS convicts cannot claim bail or suspension of sentence as a matter of right. The Court underscored that the rigours of Section 37 NDPS Act, combined with the principle that suspension of sentence is exceptional, ensure that narcotic offenders remain incarcerated unless extraordinary grounds are established.
It also highlights that technical defects or absence of public witnesses do not automatically invalidate a conviction when supported by reliable police testimony and documentary evidence.
This judgment serves as a clear reminder that “stringent punishment under the NDPS Act reflects societal interest over individual leniency.”
FAQs
1. When can suspension of sentence be granted in NDPS cases?
Only in exceptional situations—such as when the convict has served over 50% of the sentence, or there are apparent legal or factual errors indicating a fair chance of acquittal.
2. Does the absence of public witnesses weaken the prosecution in NDPS trials?
No. Courts have repeatedly held that credible police testimony, corroborated by documentary evidence, is sufficient even without independent witnesses.
3. Can delay in appeal hearings justify bail post-conviction?
Not in NDPS cases. Courts have ruled that pendency or delay alone does not constitute sufficient ground for suspension of sentence.
