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&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&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&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&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.
The court conducted an in-depth analysis of the facts and arguments presented. It relied on several Supreme court judgments to reach to the conclusion that “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.”