The Andhra Pradesh High Court has granted bail to two convicts under the Narcotic Drugs and Psychotropic Substances Act, 1985, despite their five-year rigorous imprisonment sentence, suspending the sentence pending disposal of their criminal appeal. This order underscores the court’s discretion to balance penal finality with the right to a timely appeal, particularly where no bail breach occurred during trial.
Background & Facts
The Dispute
The appellants, Kumar Dalai and Anil Kumar Jena, both residents of Ganjam District, Odisha, were convicted by the Special Sessions Judge, Nellore, in NDPS Sessions Case No. 13 of 2022 for an offence under Section 20(b)(ii)(B) read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The conviction arose from the recovery of a prohibited substance during a search operation. The trial court imposed a fixed sentence of five years rigorous imprisonment and a fine of Rs. 10,000 each, with three months simple imprisonment in default of payment.
Key Facts
- The appellants were arrested and produced before the trial court in 2022.
- They were granted bail during the trial proceedings and remained on bail throughout the trial.
- No breach of bail conditions was alleged or proven during the trial period.
- The trial court delivered its judgment on 09.03.2026, convicting and sentencing both appellants.
- The appellants filed a criminal appeal before the High Court under CRLA No. 212 of 2026.
- The appellants paid the fine amount of Rs. 10,000 each and submitted original receipts as proof of compliance.
- The appeal is not likely to be heard in the near future due to pendency in the court.
Procedural History
- 2022: FIR filed and appellants arrested in connection with NDPS Sessions Case No. 13 of 2022.
- 2022 - 2025: Appellants remained on bail during trial.
- 09.03.2026: Special Sessions Judge, Nellore, convicted appellants and sentenced them to five years rigorous imprisonment and Rs. 10,000 fine each.
- March - April 2026: Appellants filed Criminal Appeal No. 212 of 2026 before the High Court of Andhra Pradesh.
- 08.04.2026: Application under Section 389(1) CrPC and Section 430(1) BNSS filed seeking suspension of sentence and grant of bail pending appeal.
Relief Sought
The appellants sought:
- Suspension of the five-year rigorous imprisonment sentence pending disposal of the criminal appeal.
- Grant of bail during the pendency of the appeal.
- Release from custody with appropriate conditions.
The Legal Issue
The central question was whether the High Court may suspend the sentence of rigorous imprisonment under Section 389(1) CrPC and grant bail under Section 430(1) BNSS to convicts under the NDPS Act, despite the seriousness of the offence, when the appeal is unlikely to be heard promptly and the accused have not breached bail during trial.
Arguments Presented
For the Appellant/Petitioner
Learned counsel for the appellants submitted that:
- The appellants were on bail throughout the trial without any breach of conditions.
- The sentence imposed is a fixed term of five years with no possibility of early hearing of the appeal.
- The fine has been fully paid, demonstrating compliance.
- Suspension of sentence and grant of bail pending appeal is a recognized discretionary power under Section 389 CrPC, especially where the appeal is not likely to be disposed of in the immediate future.
- The appellants are not a flight risk and have deep roots in their home district.
For the Respondent/State
The Additional Public Prosecutor opposed the application on the grounds of the gravity of the offence under the NDPS Act. However, he conceded that the appellants had not violated bail during trial and that the fine had been paid. He did not contest the factual basis of the petition and ultimately did not oppose the grant of bail subject to strict conditions.
The Court's Analysis
The Court examined the provisions of Section 389(1) CrPC, which empowers the Appellate Court to suspend the sentence pending appeal, and Section 430(1) BNSS, which permits release on bail during appeal. The Court noted that while offences under the NDPS Act are serious, the statutory framework does not categorically bar bail pending appeal. The Court emphasized that the appellants had not committed any breach of bail during trial, had paid the fine, and the appeal is unlikely to be heard in the near term.
"The fact that the appellants were on bail during trial without any violation, coupled with the payment of fine and the prolonged pendency of the appeal, justifies the suspension of sentence and grant of bail pending disposal of the appeal."
The Court further held that the discretion under Section 389 CrPC must be exercised with a view to ensuring justice and preventing undue incarceration while the appeal remains pending. The absence of any prior criminal record or breach of conditions weighed heavily in favour of the appellants.
The Verdict
The appellants succeeded. The High Court suspended the five-year rigorous imprisonment sentence pending disposal of CRLA No. 212 of 2026. The appellants were released on bail subject to the following conditions:
- Execution of a personal bond of Rs. 25,000 each with two sureties of like amount, to be approved by the trial court.
- Appearance before the trial court every fourth Saturday of the month until disposal of the appeal.
- Undertaking not to commit any similar offence in the future.
- Undertaking not to leave India without prior permission of the court.
- Violation of any condition shall render the bail liable to cancellation.
What This Means For Similar Cases
Suspension of Sentence Is Not Precluded by NDPS Conviction
- Practitioners may now argue that conviction under the NDPS Act does not automatically disqualify an accused from seeking suspension of sentence pending appeal.
- Courts must consider the absence of bail breach, payment of fines, and pendency of appeal as material factors.
- The mere seriousness of the offence cannot override the statutory right to appeal.
Procedural Compliance Enhances Bail Eligibility
- Payment of fine and submission of receipts should be routinely documented and presented as evidence of good faith.
- Continuous compliance with bail conditions during trial is a decisive factor in favour of bail pending appeal.
- Monthly reporting conditions, as imposed here, are a viable middle ground between custody and unrestricted liberty.
Pendency of Appeal Justifies Interim Relief
- Where appellate hearings are delayed beyond reasonable timelines, courts are empowered to prevent incarceration pending final adjudication.
- This order reinforces the principle that the right to appeal includes the right to remain free during its pendency, absent compelling reasons to the contrary.
