High Court · 2025

Crl.M.P.(MD)No.8455 of 20254. During trial, the prosecution examined 5 witnesses as P.W.1 to P.W.5 and exhibited 9 documents as Ex.P.1 to Ex.P.9 and marked four material objects as M.O.1 to M.O.4. Whereas, the accused has adduced neither oral nor documentary evidence. 5. The learned trial Judge, upon considering the evidence, both oral and documentary and on hearing the arguments on both the sides, has passed the impugned judgment, dated 30.05.2025 convicting the petitioner/accused for the offence under Section 8(c) r/w 20(b)(ii) (B) of NDPS Act and sentenced him to undergo one year rigorous imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo three months simple imprisonment. Aggrieved by the impugned judgment of conviction and sentence, the accused has preferred the present Criminal Appeal along with the above Miscellaneous Petition seeking suspension of sentence.6. The learned counsel appearing for the petitioner/appellant would contend that the mandatory provisions under Sections 42, 50, 52A and 57 of NDPS Act were not at all followed; that there are procedural violations and without taking two samples from each packet only one sample has been 3/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025taken from each packet and that one sample alone was sent for chemical analysis. He would further submit that in chemical examination report contraband was noted as 105 grams and the same would go to show that the sample was not taken properly at the occurrence place and that the learned trial Judge, without considering the above material aspects, has proceeded to convict the accused in a mechanical fashion. 7. The learned Government Advocate (Criminal Side) appearing for the respondent would submit that the trial Court, considering the evidence available on record, has come to a right decision; that the mandatory requirements were followed; that there was no tampering of seed found in the sample package; that the marginal increase of 5 grams of the weight of the contraband shown in the chemical examination report cannot affect the case of the prosecution and that the learned Sessions Judge, considering the evidence in proper perspective, has rightly convicted the accused. 8. The learned counsel for the petitioner would further submit that the petitioner was in judicial custody earlier for the period between 09.06.2013 and 17.07.2013 and that therefore, he is in prison from 30.05.2025 till now. 4/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 20259. He would further submit that though the petitioner was awarded with one year rigorous imprisonment, he has already crossed the half of the imposed sentence and that therefore, the petitioner is entitled to get bail under Section 436-A Cr.P.C. and relied on the judgment of the Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and another reported in 2022 LiveLaw (SC) 577.10.This Court had an occasion to consider the similar aspects in Crl.M.P.(MD)No.4681 of 2023 in Crl.A.(MD)No.315 of 2022 dated 11.07.2023 and the relevant passages are extracted hereunder:-“8. The learned Special Public Prosecutor for NCB Cases appearing for the respondent would submit that there is a difference between grant of bail under Section 439 Cr.P.C. in pre-trial stage and suspension of sentence under Section 389 Cr.P.C. for grant of bail, post conviction, that grant of suspension of sentence, after conviction, is a discretionary relief and the same has to be decided based on the nature and gravity of the offence and other facts and circumstances of the case and that though appeal is considered to be continuation of the trial, the presumption of innocence is not applicable after conviction, particularly in the cases under NDPS Act.5/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 20259. The learned Special Public Prosecutor for NCB Cases appearing for the respondent would further submit that grant of bail under Section 436-A Cr.P.C. is not an absolute one, that the first proviso clause clearly indicates that after hearing the Public Prosecutor, the Court may order the continued detention of person for a period longer than one half of the said period by recording its reason in writing and that the twin conditions contemplated under Section 37 of NDPS Act has not been satisfied by the petitioners.10. The learned Special Public Prosecutor for NCB Cases appearing for the respondent would further submit that the Hon'ble Supreme Court in Dadu alias Tulsidas Vs. State of Maharashtra reported in (2000) 8 SCC 437 has specifically held that the power to suspend the sentence under Section 32A is subject to Section 37 of NDPS Act and he has also relied on the decision of the Hon'ble Supreme Court in Narcotic Control Bureau Vs. Lokesh Chadha reported in 2021 SCC Online SC 178,“9. ....Where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought under Section 389(1) of CrPC, must be duly cognizant of the fact that a finding of guilt has been 6/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act. At this stage, we will refer to the decision of a two-Judge Bench of this Court in Preet Pal Singh v State of Uttar Pradesh3 where Justice Indira Banerjee, speaking for the Court, observed as follows:“35. There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post-conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr. (supra).However, in case of post- conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail 7/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C.” 10. The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v Rajesh4. The High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS 3 (2020) 8 SCC 645 4 (2020) 12 SCC 122 Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) of CrPC was established. The order granting suspension of sentence under Section 389(1) of CrPC is unsustainable and would accordingly have to be set aside.”8/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 202511. At this juncture, it is necessary to refer the judgment of the Hon'ble Supreme Court in Satender Kumar Antil's case, mainly relied on by the learned counsel appearing for the petitioners, wherein, the Hon'ble Apex Court has held that the word 'trial' will have to be given an expanded meaning, particularly when an appeal or admission is pending and the relevant passages are extracted hereunder:-“46. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and 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 longer 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.47. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that 9/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025offense, he shall be released by the court on his personal bond with or without sureties. The word ‘shall’ clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that ‘bail is the rule and jail is an exception’ coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the accused to be excluded. This court in Bhim Singh v. Union of India, (2015) 13 SCC 605, while dealing with the aforesaid provision, has directed that: “5. Having given our thoughtful consideration to the legislative policy engrafted in Section 436-A and large number of undertrial prisoners housed in the 10/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025prisons, we are of the considered view that some order deserves to be passed by us so that the undertrial prisoners do not continue to be detained in prison beyond the maximum period provided under Section 436-A. 6. We, accordingly, direct that jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1-10-2014 for the purposes of effective implementation of Section 436-A of the Code of Criminal Procedure. In its sittings in jail, the above judicial officers shall identify the undertrial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436-A pass an appropriate order in jail itself for release of such undertrial prisoners who fulfil the requirement of Section 436-A for their release immediately. Such jurisdictional Magistrate/Chief Judicial Magistrate/ Sessions Judge shall submit the report of each of such sittings to the Registrar General of the High Court and at the end of two months, the Registrar General of each High Court shall submit the report to the Secretary General of this Court without any delay. To facilitate compliance with the above order, we direct the Jail 11/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025Superintendent of each jail/prison to provide all necessary facilities for holding the court sitting by the above judicial officers. A copy of this order shall be sent to the Registrar General of each High Court, who in turn will communicate the copy of the order to all Sessions Judges within his State for necessary compliance.” 12. The learned Special Public Prosecutor for NCB Cases appearing for the respondent has relied on the decision of the Full Bench of Bombay High Court in Maksud Sheikh Gaffur Sheikh Vs. State of Maharashtra reported in 2020 SCC Online Bom 878 and argued that the Full Bench has interpreted Section 436-A Cr.P.C. and concluded that the intention of the legislature to confer the benefit under Section 436-A is for the under-trial prisoners and not for the convicts.13. No doubt, the Full Bench has answered the reference that a convict, who has challenged his conviction under Section 374 of the Code, is not entitled to the benefit of Section 436-A of the Code.14. As rightly pointed out by the learned counsel appearing for the petitioners, in the said Full Bench 12/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025judgment, the then Chief Justice of Bombay High Court has expressed his view separately and in that it has been stated that the spirit of Section 436-A Cr.P.C. could be considered by an appellate Court while it is seized of an application under Section 389 Cr.P.C. and, drawing inspiration from the principle ingrained in the former, to suspend execution of the sentence bearing in mind all relevant factors including the time likely to be taken for disposal of the appeal and that the judicial mind in the wise exercise of discretion and by suitable moderation may suspend execution of the sentence and grant bail under Section 389 Cr.P.C., the absence of a provision like Section 436-A Cr.P.C. in the chapter on appeals notwithstanding.15. The learned Special Public Prosecutor for NCB Cases appearing for the respondent has also relied on the judgment of the Kerala High Court in Midlaj Vs. Union of India represented by National Investigation Agency reported in 2023 SCC Online Ker 998, wherein, the Kerala High Court has referred the judgment of the Hon'ble Supreme Court in Satender Kumar Antil's case. As rightly pointed out by the learned Special Public Prosecutor, the Kerala High Court has stated that in Satender Kumar Antil's case, the Hon'ble Apex Court made it clear that all the discussions along with the directions in that case, were 13/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025meant to act as guidelines, as each case pertaining to a bail application is obviously to be decided on its own merits. In that case, the appellants/accused therein had acted as against the interest of the nation as they wanted to wage war against Syria, an Asiatic power at peace with the Government of India and hence, the High Court came to the decision that though appellants have undergone major portion of the sentence imposed on them, it is not safe to release them on bail, as we do not know whether they still entertain the idea of performing Hijra to Syria for indulging in violent jihad.16. The learned counsel appearing for the petitioners has relied on the judgment of the Jammu and Kashmir High Court in Mudassir Hussain and another Vs. State and another reported in 2020 SCC Online J&K 381, wherein, taking note Section 497-D of the Jammu and Kashmir Code of Criminal Procedure (1933 A.D) as obtaining prior to coming into force of Code of Criminal Procedure, 1973, states that where a person has during the period of investigation, inquiry or trial under the Code or an offence under any law undergone detention for a period extended 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, but that 14/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025the rider of the person got detained longer than one half of the said period if the court records reasons for the same in writing, that Section 436-A of the Code of Criminal Procedure, 1973 is para-materia to Section 497-D of the Code and that since the appeal is continuation of trial and that since the appellants were admittedly undergone more than half of the sentence awarded to them, they are entitled to get the relief of suspension of sentence.17. Recently, the Hon'ble Supreme Court in Mohd. Muslim alias Hussain Vs. State (NCT of Delhi) reported in 2023 SCC Online SC 352, by referring the decision of the Hon'ble Supreme Court in Satender Kumar Antil's case, has observed,“16. In the most recent decision, Satender Kumar Antil v. Central Bureau of Investigation16 prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A17 (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply:“We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed 15/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, 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.”....20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of 16/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.”18. In Satender Kumar Antil's case, as already pointed out, the Hon'ble Apex Court went to the extent of saying that the provision contained in Section 436-A of the Code would also apply to the Special Acts and that the rigor as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person.19. It is pertinent to note that the Full Bench of Bombay High Court has delivered its judgment on 28.08.2020, but the Hon'ble Supreme Court in Satender Kumar Antil's case has decided on 11.07.2022.20. In the case on hand, as already pointed out, the petitioners were in prison from 09.01.2018 and as such, they had already undergone more than half of the sentence imposed on them.”17/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 202511. By holding so, this Court, by observing that the petitioners therein had already undergone more than half of the sentence imposed on them, passed an order suspending the sentence imposed on them. 12. It is necessary to refer the recent decision of the Hon'ble Supreme Court in Narcotic Control Bureau Vs. Lakhwinder Singh reported in 2025 LiveLaw (SC) 191 and the relevant passages are extracted hereunder:-“7. At this stage, the learned ASG appearing for the petitioner submitted that the power of the Court was constrained by Section 37 of the NDPS Act, which is applicable even at the stage of an appeal. He relies upon a decision of this Court in the case of Dadu vs. State of Maharashtra. There is no dispute about the fact that the Appellate Court is bound by constraints of Section 37 of the NDPS Act while considering the prayer for the grant of bail during the pendency of an appeal. However, if, in the facts of the case, an accused has undergone a substantial part of the substantive sentence and, considering the pendency of criminal appeals, his appeal is not likely to be heard before the accused undergoes the entire sentence, the Appellate Court can exercise the power of releasing the accused on bail pending the appeal. If the relief of bail is denied in such a factual situation only on the grounds of Section 37 of the 18/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025NDPS Act, it will amount to the violation of the rights of the accused under Article 21 of the Constitution of India. 8. In this case, the appeal preferred by the respondent is not likely to be heard before he undergoes the entire sentence. He has already undergone a substantial part of his 10-year sentence. Therefore, there is no reason to interfere with the impugned order in the facts of the case. The Appeal is, accordingly, dismissed. However, if the respondent misuses the liberty granted to him under the impugned order, the appellant can always apply for cancellation of bail.”13. It is also necessary to refer the decision of the Hon'ble Supreme Court in Atul Alias Ashutosh Vs. State of Madhya Pradesh reported in (2024) 3 SCC 663 relied on by the learned counsel appearing for the petitioner and the relevant passages are extracted hereunder:-“2.Out of fixed term sentence of five years, the appellant-accused has already undergone half of the sentence. The appeal against conviction of the year 2022 is not likely to reach before he completes the entire sentence. Hence, a case is made out for grant of suspension of sentence pending the appeal and grant of bail. For that purpose, the appellant shall be produced before the trial court within a period of one week from today.19/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 20253. The trial court shall enlarge the appellant on bail on appropriate terms and conditions till the final disposal of the appeal before the High Court. 4. Before parting with order, we must note here that notwithstanding several decisions of this Court holding that when there is a fixed term sentence and especially when the appeal is not likely to be heard before completing entire period of sentence, normally suspension of sentence and bail should be granted, we find that in several deserving cases, bail is being denied. Such cases should never be required to be brought before this Court.”14. Considering the above facts and circumstances and taking note of the guidelines issued by the Hon'ble Supreme Court in Satender Kumar Antil's case and also the fact that the petitioner had already undergone more than half of the sentence imposed on him, this Court is inclined to suspend the sentence imposed on the petitioner.15. In the result, this Criminal Miscellaneous Petition is allowed. Accordingly, the relief of suspension of sentence and bail is granted to the petitioner on the following conditions:-20/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025(i) the petitioner is directed to execute a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with two sureties, each for a like sum to the satisfaction of the I Additional Special Court for EC & NDPS Act cases, Madurai;(ii) the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the learned Trial Judge may obtain a copy of any valid identity proof to ensure their identity ; (iii) The petitioner shall appear before the trial Court in all working days at 10.30 a.m., until further orders and if he is not able to appear before the trial Court on any day, he shall make arrangements to file an application under Section 317 of Cr.P.C (355 of BNSS) and shall appear before the trial Court on any other day in lieu of the date of his absence, as directed by the trial Court. 14.11.2025NCC :Yes / NoIndex :Yes / NoInternet :Yes / Nodas21/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025To1.The I Additional Special Court for EC & NDPS Act cases, Madurai.2.The Inspector of Police, Uthamapalayam Police Station, Theni District.3.The Superintendent of Prison, Central Prison, Madurai. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.22/23 https://www.mhc.tn.gov.in/judis Crl.M.P.(MD)No.8455 of 2025K.MURALI SHANKAR,J.dasPre-delivery order made inCrl.M.P(MD)No.8455 of 2025inCrl.A(MD)No.722 of 2025Dated: 14.11.202523/23