Point of Law: Section 37 is not a bar to grant of bail in cases where there is undue delay in conclusion of trial.

JUDGMENT :

1. The instant application for suspension of sentence has been moved in connection of the judgment impugned dated 18.11.2021 passed by Learned Special judge, NDPS Act cases No.2, Dist. Chittorgarh in Sessions case No. 109/2014 whereby the accused appellant has been convicted for the offences punishable under sections 8/15 of NDPS Act and he has been sentenced with maximum of ten years rigorous imprisonment along with fine of Rs. 1,00,000/-.

2. Learned counsel for the accused-appellant submits that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. The other co-accused person namely Nanalal has already been released on bail by the coordinate bench of this court vide order dated 02.02.2018 and the case of the appellant is on better footing than that of Nanalal. It is the admitted case of the prosecution that neither the petitioner was found present at the crime scene nor any incriminating material or contraband was recovered from his possession. There is not an iota of evidence to show or suggest the complicity of the petitioner in commission of the crime. The alleged recovery has not been made from his exclusive and conscious possession. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.

3. Per contra, learned Public Prosecutor vehemently opposes the prayer made by representative for the accused-appellant and submits that the matter pertains to recovery of 744 kilograms of poppy husk 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 appellant has suffered imprisonment for almost 5 years. The impediment contained under Sections 32-A and 37 of NDPS, Act will be attracted in the factual situation of the present case.

4. Heard and perused the material available on record as well as gone through the statutory provisions applicable in the matter.

5. As per the story of the prosecution, certain quantity of poppy husk was recovered from a tractor-trolley parked at bara (‘an open land for leashing animals’). Admittedly when the alleged recovery was made, no one was found present at the spot and the contraband was lying in an abandoned condition. The appellant was not present at the spot.

6. The appellant has been arraigned as an accused in this case on the strength of statement of one constable mahendra who was one of the member of seizing team. He stated that one person who fled away from the spot was the present appellant. He has been examined in trial as PW-18, when his creditability was tested in cross examination, he made several evasive replies regarding identification of the appellant for which this court refrains from making any final observations at this stage as the same may influence the hearing of this appeal, yet tentatively feel it apt to take the same as a serious point of consideration regarding his reliability.

7. In a recent ruling titled Mohd Muslim @ Hussain V. State (NCT OF DELHI) in Special Leave Petition (CRL.) NO(S). 915 of 2023 order dated 28.03.2023, Hon’ble the Supreme Court has discussed Section 37 of the NDPS Act in detail and has allowed the accused in that matter to be released on bail while holding that the impediment contained under Section 37 is not a bar to grant of bail in cases where there is undue delay in conclusion of trial. The paragraph of the afore-said judgment relevant to the present matter is reproduced below:

“18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court