JUDGMENT :

Farjand Ali, J.

Heard learned Counsel for the accused appellant and learned Public Prosecutor on the application for suspension of sentence and perused the Judgement impugned dated 28.6.2022 passed by Special Judge (N.D.P.S. cases), Bharatpur in Sessions case No. 38/2019 (CIS-42/2019) whereby the accused appellant has been convicted for the offence punishable under Section 8 /20(b)(II)(c) of NDPS Act, 1985 and has been sentenced with maximum of Eleven years rigorous imprisonment along with fine of Rs. 1,00,000/-.

2. Learned Counsel for the accused-appellant submits that the Trial Court has grossly erred in convicting and sentencing the accused-appellant. Learned Counsel for the petitioner submits that a false case has been foisted against the petitioner. Section 2 of the NDPS Act contains the definitions and clause (III) of the same defined what "cannabis (hemp)" means through three sub-clauses. The sub-clause (b) of clause (iii) defines 'ganja' as "the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated." He avers that, for the purpose of determining the total weight of the recovered contraband ganja, the whole plants were taken into consideration, including the seeds, leaves, roots and stems whereas only the flowering or fruiting tops of the cannabis plants should have been taken into consideration for weighing of contraband ganja as per the defining clause under NDPS Act. The other - annexures liked stem, leaved and roots are neutral substances. Upon search, one plastic bag was found in the car from his possession which contained 9 small packet of alleged contraband. The two samples of 100 grams each, marked A (chemical sample) and B (control sample), were taken from the seized contraband contained in the 9th small bag only for investigation. The samples of contraband were not collected individually from the nine small bags for investigation as per the stipulations in the Standing Instruction No. 1/89 issued by the N.C.B., New Delhi. As individual weight of all the packets is known and samples from each of the nine small bags were not drawn for testing, it cannot be said with utmost certainty that each of the small bags contained ganja and that the quantity of the recovered contraband in 38.300 kilograms. The appellant has spent last 4 years and 3 months in custody, if he is not released on bail the very purpose of filing the appeal would be frustrated. He places reliance on the judgment dated 27.8.2022 passed by this Court in S.B. Criminal Miscellaneous II Bail Application No. 12906/2022 titled as Suraj v. State of Rajasthan as well as on the judgment passed by Hon'ble the Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation reported in (2021) 10 SCC 773 to support his argument that looking to the long period of incarceration, the sentence of the applicant deserves to be suspended. As the hearing of the appeal will take long time to conclude, therefore, learned Counsel for the appellant submits that the sentence awarded to the accused appellant may be suspended.

3. Learned Public Prosecutor vehemently opposes the prayer made by learned Counsel for the accused-appellant and submits that the matter pertains to recovery of 38.300 kilograms of Ganja 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 petitioner has suffered imprisonment for almost 4 years and 3 months.

4. From perusal of the seizure memo, it is appearing that the total weight of reco