ORDER :

Farjand Ali, J.

The instant applications for suspension of sentence have been moved in connection of the judgment impugned dated 09.02.2022 passed by Learned Special Judge, NDPS Cases, Bhilwara in Sessions case No. 26/2019 whereby the accused appellants have been convicted and sentenced to suffer maximum imprisonment of 10 years under Sections 8 /15 of NDPS Act.

2. Briefly stated, the facts of the instant case are that a car bearing registration No. DL 8 CP 3167 was intercepted by the police at the time of 'nakabandi' on Swaroopganj Chauraha on 21.01.2019 at about 10:15 A.M. Upon suspicion, the police officers searched the vehicle and during search, total six bags of poppy husk were found in the car containing a total of 60 kilograms of Poppy husk which was seized by the police and the seizing officer took 500 grams of poppy husk from each bag for sampling respectively marked A (chemical sample) and B (control sample) which were sent to FSL.

3. 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. He submits that there are several flaws in the prosecution case on the basis of which the judgment of conviction is not sustainable. The appellant has spent about 4 years and 07 months in custody and he has served almost half of the sentence, if he is not released on bail the very purpose of filing the appeal would be frustrated. He places reliance 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. He further submits that there are major discrepancies in the weight of the alleged recovered contraband mentioned in the FIR and the inventory prepared by the Judicial Magistrate which casts serious doubts regarding the actual weight of the contraband. He also submits that during the time of alleged recovery the individual weights of 6 gunny bags, in which the contraband was kept, were not measured and subtracted from the total weight of the alleged contraband. 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.

4. Per contra, learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellants and submits that the matter pertains to recovery of 60 kilograms of poppy husk and the judgment of conviction passed by learned Court below does not warrant any interference. The impediment contained under Sections 32 -A and 37 of NDPS Act will be attracted in the factual situation of the present case.

5. After thoroughly evaluating the record and considering the overall submissions, it is observed that there is inadequate proof to establish that the total weight of the recovered contraband poppy husk is above the commercial quantity demarcated for it. On 19.03.2019, the inventory was prepared by the Judicial Magistrate and a perusal of the same reveals that the total weight of the contraband contained in the six bags was 51.330 Kilograms excluding the weight of samples but the total weight of the contraband contained in the six bags as per the seizure memo is 60 kilograms. Now, it is pertinent to note that the aggregate weight of the contraband as per inventory was calculated without subtracting the weight of the