IMPORTANT POINT
The court established that non-compliance with procedural requirements under the NDPS Act can render evidence inadmissible, and prolonged incarceration can be a valid ground for suspending a sentence pending appeal.

ORDER :

Farjand Ali, J.

1. The instant application for suspension of sentence has been moved on behalf of the applicant-appellant in the matter of judgment dated 09.01.2023 passed by the learned Special Judge, NDPS Act Cases, Bhilwara in Sessions Case No.40/2019 whereby he was convicted and sentenced to suffer maximum rigorous imprisonment of 10 years under Section 8/25 of NDPS Act along with a fine of Rs.1,00,000/- and in default of payment of fine further undergo six months rigorous imprisonment.

2. It is contended on behalf of the applicant-appellant 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. It is further submitted that hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted. It is also submitted that the sentence of the co-accused Mahendra Rebari has already been suspended by this Court vide order dated 19.03.2024 passed in S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No.153/2023.

3. Per contra, learned Public Prosecutor has vehemently opposed the prayer made on behalf of the accused applicant-appellant for releasing him on application for suspension of sentence. He is not in a position to dispute the fact that sentence of the above named co-accused has already been suspended.

4. Heard learned counsel for the parties and perused the material available on record.

5. This Court vide a detail order dated 19.03.2024 passed in S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No.153/2023 has suspended the sentence of co-accused Mahendra Regbari. The said order is being reproduced hereunder :-

“1. The instant application for suspension of sentence have been moved on behalf of the applicant in the matter of judgment dated 09.01.2023 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No.40/2019 whereby he was convicted under Section 8/15 of the NDPS Act and sentenced to suffer 10 years rigorous imprisonment along with a fine of Rs.1,00,000/- and in default to further undergo six month’s rigorous imprisonment.

2. It is contended on behalf of the applicant 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. As the accused-applicant is behind the bars since 18.03.2019. He placed reliance on the Petition(s) for Special Leave to Appeal (Crl.) No(s) 2893/21 titled Manohar Lal Ainani Vs. State of Rajasthan & Anr., wherein it was held vide order dated 15. 11.2021 that looking to the prolonged custody period of the petitioner, bail shall be granted to him in that matter. In another landmark judgment of Satender Kumar Antil vs. Central Bureau of Investigation and Ors. reported in AIR 2022 SC 3386, the aforesaid aspect has been reiterated. Lastly, he submits that hearing of the appeal would likely to take time, thus, their sentence may be suspended during the pendency of the appeal.

3. Per contra, learned public prosecutor has vehemently opposed the prayer made on behalf of the accused-applicant for releasing the appellant on application for suspension of sentence.

4. I have heard learned counsel for the parties and perused the material available on record.

5. Perusal of the record revealing the facts of the instant case are that on 18.03.2019, the SHO Bhura Ram with his team intercepted an Alto Car which was allegedly being driven by the applicant Mahendra and the applicant Chaina Ram was not present at the spot, he has been made an accused on the strength of statement of co-accused. Upon making search, 218 Kg poppy husk came to be recovered. Samples were taken and sent to the FSL for its chemical examination. Now,