State Government and its functionaries are obliged to go strictly in order of merit and apply the principle of reservation while selecting candidates: Supreme Court of India

IN THE CRIMINAL APPELLATE JURISDICTION Criminal Appeal No 2521 Arising out of SLPNo 6721 The StateNarcotics Control Bureau JUDGMENT Dr Dhananjaya Y Chandrachud J This appeal arises from a judgment of a learned Single Judge of the High Court of Delhi dated 28 July 2020 by which the application filed by the respondent seeking suspension of sentence under Section 389(1) of the Code of Criminal Procedure 19731 has been allowed The respondent has been convicted of offences punishable under Sections 23(c and 25A of the Narcotic Drugs and Psychotropic Substances Act 1985 2. He has been sentenced to suffer rigorous imprisonment for ten years in respect of the offence under Section 23(c) and for three years under the provisions of Section 25A apart from fine. Briefly stated on 2 December 2015 the IO of the Narcotics Control Bureau Delhi Zonal Unit received a phone call from DHL Courier that two parcels were lying in the office and were suspected to contain narcotic drugs. Accordingly a team of the Narcotics Control Bureau Delhi Zonal Unit reached the office of DHL. Two parcels were seized. The parcels were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. The parcels were booked to a foreign destination at the behest of a foreign national by the co accused who was an employee of the respondent. The respondent himself is a proprietor of the courier agency which had accepted the parcels initially for booking from the foreign national. The Special Judge after considering the entirety of the evidence on the record came to the conclusion that the offence stood established as against the respondent but the benefit of doubt was granted to the co accused on the ground that he was only an employee who was acting at the behest of the respondent. An appeal has been filed before the High Court of Delhi by the respondent. While considering the application for suspending the sentence the learned Single Judge recorded the following submissions of the respondent in paragraph 2 of the impugned order “2. Learned counsel for the appellant submits that out of the total sentence of 10 years awarded to the appellant by the Trial Court the appellant has already undergone a period of about 4 years and 4 months. He has taken the Court through the records to show that though the appellant who was owner of the courier company has been convicted and the employee of the company who had received the parcels has been acquitted on the same set of evidence. It is further submitted that no investigation was made to arrest the consignor. He also submits that since the appeal is likely to take some time to come up for final hearing no useful purpose would be served in keeping the appellant in jail till such time and prays that the appellant s sentence may be suspended during the pendency of the The application was opposed on behalf of the Narcotics Control Bureau by the Senior Standing Counsel who appeared to oppose the suspension of sentence The High Court while passing an order of suspension of sentence indicated its reasons in paragraph 4 of the order which reads as follows “4. Looking into the facts and circumstances of the case and the period undergone by the appellant and the fact that the appeal is not likely to be taken for hearing in near future on account of disruption caused by COVID 19 pandemic the application is allowed and the sentence of the appellant is suspended during the pendency of the appeal on his furnishing a personal bond in the sum of Rs.50 000 with one surety of the like amount to the satisfaction of the concerned Jail Superintendent Duty Magistrate subject to the following The appellant will not leave NCT of Delhi without prior permission of the Court The appellant shall appear before the Court as and when the appeal is taken up for final hearing In case of change of address the appellant shall promptly inform the same to the concerned IO as well as to the Mr Aman Lekhi learned Additional Solicitor General appearing on behalf of the appellant submits that the provisions of Section 37 of the NDPS Act contain stringent requirements before an application for bail can be allowed. Learned Additional Solicitor General submits that one of the requirements is that “the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”. It was urged that in a case such as a present where the conviction is under the provisions of Sections 23(c) and 25A of the NDPS Act the requirement of Section 37 that “there are reasonable grounds for believing that he is not guilty of such offence” must apply a fortiori because the trial Court after conducting a trial has on the basis of the evidence which is adduced come to the conclusion that the offence has been established. In the present case it was urged that absolutely no reasons have been indicated by the learned Single Judge of the High Court for granting bail save and except for a vague reference to the “facts and circumstances” of the case the period undergone by the respondent and the fact that the appeal was not likely to be taken for hearing in the near future due to the disruption caused by the Covid 19 pandemic On the other hand Ms Nidhi learned counsel appearing through the Supreme Court Legal Services Committee to represent the respondent has adverted to the judgment of the Trial Judge and submitted that prima facie the involvement of the respondent would not stand established. That apart it has been submitted that the respondent has undergone about four years and four months of imprisonment and the High Court having exercised its discretion to grant bail a case for interference has not been made out While considering the rival submissions we must at the outset advert to the manner in which the learned Single Judge of the High Court has dealt with the application for suspension of sentence under Section 389(1) of CrPC. The offence of which the respondent has been convicted by the Special Judge arises out of the provisions of Sections 23(c) and 25A of the NDPS Act. The findings of the learned Special Judge which have been arrived at after a trial on the basis of evidence which has been adduced indicate that the respondent who was a proprietor of a courier agency was complicit with a foreign national in the booking of two parcels which were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail where the public prosecutor opposes the application unless the Court is satisfied “that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”. 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 arrived 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. of the Cr.P.C.” 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 2020) 8 SCC 645 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 While concluding however we hasten to add that our observations are confined to the question as to whether a case for suspension of sentence was made out and shall not affect the merits of the case when the appeal comes up for hearing before the High Court For the above reasons we allow the appeal. The judgment and order of the High Court dated 28 July 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence However having regard to the fact that the respondent has undergone four years and four months of imprisonment we would request the High Court to take up the appeal for hearing and final disposal upon the respondent’s surrendering to the sentence and dispose it of by the end of 2021 Pending application if any stands disposed of SECTION II C S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s).670 2021 Arising out of impugned final judgment and order dated 28 07 2020 in CRLMB No. 7540 2020 passed by the High Court of Delhi at New THE STATENARCOTICS CONTROL BUREAU VERSUS LOKESH CHADHA WITH IA No. 9362 2021 EXEMPTION FROM FILING C C OF THE IMPUGNED Date : 02 03 2021 This petition was called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE M.R. SHAH Mr. Aman Lekhi ASG Mr. Bharat Singh Adv Mr. B V Balaram Das AOR Mr. Divyansh H Rathi Adv Mr. Anirudh Bakhru Adv Ms. Nidhi AOR Mr. Jaydip Pati Adv UPON hearing the counsel the Court made the following O R D E R For the reasons recorded in the signed reportable judgment we allow the appeal. The judgment and order of the High Court dated 28 July 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence. However having regard to the fact that the respondent has undergone four years and four months of imprisonment we would request the High Court to take up the appeal for hearing and final disposal upon the respondent’s surrendering to the sentence and dispose it of by the end of 2021 Pending application if any stands disposed of AR CUM PS COURT MASTER SAROJ KUMARI GAUR Signed reportable judgment is placed on the file ITEM NO.8 Court 6SECTION II C S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s).670 2021 Arising out of impugned final judgment and order dated 28 07 2020 in CRLMB No. 7540 2020 passed by the High Court of Delhi at New NARCOTICS CONTROL BUREAU VERSUS LOKESH CHADHA WITH IA No. 9362 2021 EXEMPTION FROM FILING C C OF THE IMPUGNED Date : 02 03 2021 This petition was called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE M.R. SHAH Mr. Aman Lekhi ASG Mr. Bharat Singh Adv Mr. B V Balaram Das AOR Mr. Divyansh H Rathi Adv Mr. Anirudh Bakhru Adv Ms. Nidhi AOR Mr. Jaydip Pati Adv UPON hearing the counsel the Court made the following O R D E R For the reasons recorded in the signed reportable judgment we allow the appeal. The judgment and order of the High Court dated 28 July 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence. However having regard to the fact that the respondent has undergone four years and four months of imprisonment we would request the High Court to take up the appeal for hearing and final disposal upon the respondent’s surrendering to the sentence and dispose it of by the end of 2021 Pending application if any stands disposed of AR CUM PS COURT MASTER SAROJ KUMARI GAUR Signed reportable judgment is placed on the file

Summary: While filling up these vacancies, the State shall adhere to the minimum required qualifying marks as devised during the process of selection and consider all eligible candidates and go strictly in order of merit. All selections done in accordance with these directions are deemed
to be Constitutional in nature and hence valid. This auspicious judgment was passed by the Supreme Court of India in the matter of PRAMOD KUMAR SINGH AND ORS. V. STATE OF UTTAR PRADESH AND ORS. [WRIT PETITION (CIVIL)NO. 465 OF 2020] by Honourable Justice Uday Umesh Lalit, Honourable Justice S. Ravindra Bhat and Honourable Justice Hrishikesh Roy. This petition was filed under Article 32 and the following reliefs were sought-Direct the Respondents to rectify the final select list dated 11.11.2019 in terms of three parameters i.e. merit, preference, and reservation, and consider the Petitioners for appointment to the post of Constable PAC &amp; Fireman seats meant for General Category Male Candidates which remained unfilled till date.  The principal grounds raised in the writ petition were that candidates in their reserve category in Constable (Civil) were wrongly shifted to open category on different cadre and the Respondents had filled only 1650 seats out of 2016 seats in Constable PAC Post and 446 seats out of 1038 in Constable Fireman Post.  The facts leading to this case were that UP Government had issued an advertisement citing that the selection process was to fill up 41610 posts of Police Constables. The petitioners had participated in the selection process as candidates of the General Category. In the results 38315 candidates were successful, thus, there were vacancies that were not filled as no suitable candidates were available. The Court observed that “In the instant case concerning the selection of police constables, about 2312 vacancies had remained unfilled and additionally, there were 982 vacancies arising out of causes such as non-reporting of the selected candidates. In the circumstances, the directions given in Ashish Kumar Yadav and ors. v. State of Uttar Pradesh and ors are relevant.” Thus, UP undertook further selections and submitted an affidavit of compliance. Later, in this writ petition it is submitted that certain candidates coming from ‘Reserved Categories’, who were initially selected against Reserved Categories’ seats, were now shown against ‘Open Category’ and, thus, the chances of ‘Open Category’ candidates to that extent stood prejudiced. According to the petitioners, there should not have been any
adjustment of the candidates who were already selected and all those seats should have been made available to the ‘Open Category’. The Court observed that “In the affidavit-in-reply filed in the present matter, marks obtained by all the petitioners have been set out. The State has given details about the last selected candidates in various categories and has stated that the last selected person in the ‘General Male Category’ was one Pawan Singh (having secured 313.616 marks). Except for the petitioners at serial Nos. 22 and 24, who had secured 313.616 marks, none of the 48 petitioners had secured marks in excess of 313.616. It is also stated that since a large number of candidates had secured exactly 313.616 marks, the tiebreaker principle was adopted in which these two petitioners got eliminated.” Additionally, “The process adopted by the State Government as is discernable from the affidavit of compliance shows that List-I dealt with the candidates selected in ‘Open Category’ while Lists II, III and IV pertained to the candidates selected in ‘OBC/SC/ST categories respectively. List-I comprised of two kinds of candidates. First, those who were initially selected in their respective vertical reserved categories (OBC/SC/ST), but depending on their merit, were found entitled to be put in ‘Open Category’; and secondly, new candidates who were selected on the basis of their merit in various categories.” Thus, the Court stated that “It is not the grievance of the petitioners that any candidate who had secured marks lesser than the petitioners, has been selected. The challenge is to the shifting of candidates, who were earlier selected against posts meant for reserved categories, to the open category. the State Government and its functionaries were obliged to go strictly in order of merit and apply the principle of reservation. With the availability of 3295 additional posts, in the re-working exercise, if the candidates who were already selected against reserved posts were entitled to be considered against open category posts, that exercise cannot be termed as illegal or invalid on any count. These 3295 posts were part of the same selection process initiated in 2013 for filling up 41610 posts and as such the adjustment was rightly done by the State.”