A conviction under the N.D.P.S. Act requires clear evidence of possession or involvement, which was not present in this case.

JUDGMENT

The appellant has been convicted and sentenced as below vide Judgment dated 06.12.2019 passed by Special Judge, N.D.P.S. Cases (Additional Sessions Judge) Jaitaran, District Pali in Sessions Case No. 29/2016 (23/2014) :-

The appellant has moved this application under Section 389 Cr.P.C. seeking suspension of sentences awarded to him by the trial court.

Learned Public Prosecutor has not chosen to file reply to the application for suspension of sentences and proposes to argue the matter orally.

Heard learned counsel for the appellant and learned Public Prosecutor and perused the impugned judgment and original record of the case.

Learned counsel for the appellant submits that the recovery of narcotic substance was not made from the possession of the appellant. He was convicted without any evidence on record. He further submits that as per the prosecution story, the narcotic substance was loaded at the behest of the appellant but there was no evidence on record in this regard. The appellant was not owner of the vehicle, from which the contraband poppy straw was recovered. The registered owner of the vehicle was Mahfooj Aalam. The appellant was involved in this case on the basis of so- called power of attorney executed by Mahfooj Aalam in favour of the appellant. He further submits that the trial court erred in convicting the appellant for the offences under Sections 8/15, 25 & 29 of the N.D.P.S. Act. He further submits that with intent to save the registered owner, the appellant was wrongly enroped in this case. In the above circumstances, he prays to allow this application for suspension of sentences.

On the other hand, learned Public Prosecutor has opposed the application for suspension of sentences.

Having regard to the submissions made at the Bar and after perusal of the record, it is evident that the narcotic substance was not recovered from the possession of the appellant. He was convicted under Sections 8/15 and 25 with the aid of Section 29 of the N.D.P.S. Act. As per prosecution, the appellant had loaded the narcotic substance in the vehicle, which was recovered by the police. However, the trial court did not mention any evidence in the judgment, on the basis of which, it can be proved that the substance was loaded by the appellant. The appellant has remained in custody for more than four years. There is no previous conviction on record against the appellant. Hearing of the appeal is likely to consume time.

In this background and having regard to the facts and circumstances of the case, this Court is inclined to accept the application for suspension of sentences and to release the appellant on bail during the pendency of the appeal.

Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the Special Judge, N.D.P.S. Cases (Additional Sessions Judge) Jaitaran, District Pali vide Judgment dated 06.12.2019 in Sessions Case No. 29/2016 (23/2014) against the appellant-applicant - Abdul Abid S/o Abdul Kadir, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he executes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the trial Judge for his appearance in this Court on 13.12.2021 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the suret