JUDGMENT

Hima Kohli, J. This application is filed by the appellant under Section 389 of the Cr.P.C. praying inter alia for suspension of sentence during the pendency of the accompanying appeal. By the impugned judgment dated 17.03.2010, the appellant was found guilty and convicted of the offence under Section 27-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') by the learned Special Judge, NDPS. As per the order on sentence dated 20.03.2010, the appellant was awarded a sentence of rigorous imprisonment for a period of ten years and a fine of Rs.1,00,000/-. In default of payment of fine, it was directed that the appellant would undergo simple imprisonment for a period of one year.

2. The brief facts of the case are that on 24.08.2001, based on secret information received by the Special Cell, Lodhi Colony, a raiding party was formed and at 10.20 pm at night, two persons were apprehended from near the Ambassador Hotel. One Naquibullah, was apprehended by the police, while supplying 1 gm of cocaine to one Neeraj Wadhera. In the disclosure statement of Naquibullah as recorded on 30.8.2001, he disclosed that he used to receive financial assistance from the appellant. Pursuant to this disclosure statement, recovery was made of two =self cheques' amounting to Rs.20,000/- each, issued by the appellant and allegedly encashed by Naquibullah. The appellant surrendered on 20.2.2002 and pursuant to the disclosure statement made by him, recovery was made of two more `self cheques' of Rs.10,000/- and Rs.5,000/-, issued by the appellant and allegedly encashed by Naquibullah.

3. At the outset, the learned APP for the State challenged the maintainability of the application for the suspension of sentence in the light of Section 32-A of the Act, which prohibits suspension of any sentence awarded under the Act, except under Section 27 of the Act. He also opposed the grant of suspension of sentence on merits, on the ground that there is no infirmity in the order of conviction passed by the Special Judge, NDPS, as there exists sufficient evidence on record to show that the appellant was involved in financing of the drug trade.

4. In reply, learned Senior Advocate for the appellant asserted that the present application is maintainable, and placed reliance on the three-judge bench judgment of the Supreme Court in the case of Dadu @ Tulsidas v. State of Maharashtra reported as (2000)8 SCC 437. On merits, he submitted that apart from the disclosure statement of Naquibullah, there was no other evidence against the appellant before the learned Special Judge, NDPS to have convicted him under Section 27-A of the Act. He further submitted that the only evidence relied upon by the prosecution were the four 'self cheques' issued by the appellant, which were recovered pursuant to the disclosure statements of Naquibullah and the appellant. It was urged that the disclosure statement of Naquibullah cannot be treated as a substantive piece of evidence as it is merely the disclosure of a co-accused. He, further, argued that the statement of Naquibullah would be admissible only to the extent to which it states that cheques were issued to him by the appellant, but not that he was being financed by the appellant in the aid of his drug trade. In the alternative, it was argued, that even if the disclosure statements of Naquibullah and the appellant, which led to the recovery of four cheques, are considered admissible in evidence, the same cannot lead to the conclusion that the appellant was financing Naquibullah's drug trade, as the cheques were self-encashed by the appellant who had stated that he had to make payments to one Ali, a carpet seller, a fact which is supported by the testimony of PW-15, A.N. Dhawan, the accountant of the appellant. In support of his submission that the appellant is entitled to grant of suspension of sentence in the present case, counsel for the appellant placed reliance on the fol