IMPORTANT POINT
Sentence can be suspended and bail granted to accused where hearing of appeal is likely to take further more time.

ORDER

Heard learned counsel for the accused appellants and learned Public Prosecutor on the application for suspension of sentence and perused the judgment impugned dated 26.09.2019 passed by Special Judge (N.D.P.S. cases) Bhawanimandi, Jhalawar in Sessions case No. 36/2016 (old No. 15/2014) whereby the accused appellants has been convicted for the offence punishable under sections 8/18 of NDPS Act and have been sentenced with maximum of twenty years rigorous imprisonment along with fine of Rs.2,00,000/- as well as under sections 8/21 of NDPS Act and have been sentenced with maximum of twenty years rigorous imprisonment along with fine of Rs.2,00,000/-. Learned counsel for the appellants vehemently submits that the mandatory provisions of NDPS Act have not been complied with, thus, on this count, the recovery of the contraband is vitiated. The appellants has spent last 8 years and 9 months in custody, if they is not released on bail the very purpose of filing the appeal would be frustrated. He places reliance on the judgment dated 27.08.2022 passed by this Court in SB Criminal Miscellaneous II Bail Application No. 12906/2022 titled as Suraj Vs. State of Rajasthan as well as on the judgment passed by Hon’ble the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation reported in (2021) 10 SCC 773 to support his argument that looking to the long period of incarceration, the sentence of the applicant deserves to be suspended. As the hearing of the appeal will take long time to conclude, therefore, learned counsel for the appellants submits that the sentence awarded to the accused-appellants may be suspended.

2. Learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellants and submits that the matter pertains to recovery of 15 kilograms of opium and 250 grams of smack and the judgment of conviction passed by learned Court below does not warrant any interference. As per the custody certificate submitted by learned Public Prosecutor, the petitioner has suffered imprisonment for almost 8 years and 9 months.

3. This Court is cognizant of the provisions contained in Section 32-A and Section 37 of the NDPS Act but considering the submissions made by learned counsel for the accused-appellants regarding non-compliance of statutory procedure and keeping in mind the fact of subjection of accused to long period of incarceration pending appeal, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused appellants.

4. Hon’ble the Supreme Court has propounded guidelines on the subject of bail in the case of Satender Kumar Antil (supra) and has held as under:—

“41. Sub-section (2) has to be read along with Sub-Section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436-A of the Code which stands on a different footing.

42. ......

43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available Under Section 436A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent th