Excessive duration of custody during appeal undermines constitutional rights, warranting suspension of sentence under NDPS Act when significant time has been served and appeal hearings are delayed.

ORDER :

S.V.PINTO, J.

ORDER IN CRIMINAL APPEAL:

Admit. Learned APP waives service of admission for and on behalf of the respondent State.

ORDER IN CRIMINAL MISC. APPLICATION:

1. Rule. Learned APP waives service of notice of rule for the respondent – State.

2. By way of present application under Section 430 of the BNSS the applicant - accused is seeking suspension of sentence and release on regular bail during pendency of the present appeal application against the judgment and order of conviction in Special NDPS Case No. 3/2021 passed by the learned Special Judge (NDPS Act), Patan at Radhanpur on 18.02.2026 whereby, the learned Judge has sentenced the applicant – original accused to undergo to rigorous imprisonment of seven years and fine of Rs. 1,00,000/-, and in default, simple imprisonment of six months for the offence punishable under Sections 18 (c) of the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the NDPS Act’).

3. Heard learned advocate Mr. Kishan Nayi for the applicant – accused and learned APP Ms. C.M. Shah for the respondent – State.

4. Learned advocate Mr. Kishan Nayi for the applicant – accused submits that the conviction and sentence is essentially under Sections 18 (c) of the NDPS Act. Learned advocate submits that the applicant was arrested on 26.03.2021 and out of seven years sentence, the applicant has already completed more than half of the awarded sentence i.e. substantial period of 4 years, 10 months and 16 days in jail. In support of his submission, learned advocate for the applicant has placed reliance upon the decision of the Hon’ble Apex Court in cases ofMossa Koya Vs. State (NCT of Delhi) reported in2021 SCC Online 3110, Saudan Singh Vs. State of Chhatisgarh passed in Special Leave to Appeal (Crl) No. 4633 of 2021 and Bhagwan Rama Shinde Gosai Vs. State of Gujarat reported in(1999) 4 SCC 421. Learned advocate further submits that the present appeal is not likely to be heard in near future and hearing of the same would take a long time and hence, no purpose would be served by keeping the applicant in jail for indefinite period with hardened criminals. The applicant has a good case on merits and hence, the order of the sentence may be suspended and the applicant may be released on regular bail on appropriate terms and condition.

5. Learned APP for the respondent – State has strongly objected to the submissions made by the learned advocate for the applicant and has submitted the jail remarks which shows that the applicant has undergone 4 years, 10 months and 16 days in jail and that learned Trial Court has rightly convicted the present applicant as he has been involved in a very serious offence and has requested this Court to dismiss the present application.

6. The Apex Court, in the case of Mossa Koya Vs. State (NCT of Delhi) reported in 2021 SCC Online 3110, has observed in Paragraph Nos. 12 and 13, as under:

“12. We appreciate the submission of the Additional Solicitor General that offences under the NDPS Act are of a serious nature and the case is at the post conviction stage. Yet the Court cannot be unmindful of the fact that the appellant has undergone 8 years out of the total sentence of 10 years. The appeal is unlikely to be heard early. In all probability, the entire sentence would have been undergone by the time the appeal is heard. The decisions on the basis of which the High Court of Delhi has declined to grant suspension of sentence, are, at the highest, a broad guideline and cannot be placed on the same pedestal as a statutory interdict. With the pendency of the work in the High Court, it may not be feasible to expedite the disposal of the appeal within a short period.

13. In the circumstances, particularly, since the appellant has undergone 8 years out of ten years of the total sentence which has been imposed on him, we are of the view that a fit and proper case has been made out for the suspension of the sentence under Section 389 CrPC.”

7. Considering the observat