Procedural irregularities and discrepancies in evidence can justify the suspension of a sentence under the NDPS Act despite stringent conditions.

Order :

(FARJAND ALI, J.)

1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment of conviction dated 03.10.2023 and order of sentence dated 04.10.2023 passed by the learned Special Judge, NDPS Case (Addl. Sessions Judge No.1), Nohar, District Hanumangarh, in Sessions Case No.98/2022 whereby he was convicted and sentenced under Section 8/22 of the NDPS Act to suffer imprisonment of twelve years RI along with a fine of Rs.2,00,000/- and in default to further undergo three months SI.

2. In short the facts of the case are that on 16.05.2022, SHO Ajay Kumar along with his team upon suspicion intercepted a Motorcycle which was in a high speed and the rider disclosed his name as Farukh and during search 720 capsules of Tramadol (378 Grams) got recovered from the bag. After investigation and taking all evidence on record, the learned Court passed judgment of conviction and order of sentence as stated above.

2. It is contended by the learned counsel for the 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 and 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 has vehemently opposed the prayer made by learned counsel for the accused- applicant for releasing the appellant on application for suspension of sentence.

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

5. The applicant-appellant is in custody since 17.05.2022. Exhibit P1: Seizure Memo, Exhibit P13: State Forensic Science Laboratory (SFSL) Report and Exhibit P17: Inventory prepared by the Magistrate, all three documents have serious discrepancies with regard to nature and way of sample taken by the agency for its chemical examination. Further discrepancies have been noticed between the weight of the samples taken for the purse of chemical examination. There are arguments with regard to flout of mandatory provisions viz., Sections 42, 50, 52-A and 55 of the NDPS Act so also flout of SO No.1/89.

6. Looking to the the voluminous pendency of cases, there is no hope of hearing of appeal in the near future. While Section 37 of the NDPS Act imposes stringent conditions for suspending sentence in cases involving commercial quantities, the procedural irregularities and lack of compliance with mandatory provisions dilute the prosecution's case at this stage, therefore, the embargo under Section 37 may not be a hindrance in granting application for suspension of sentence.

7. In view of the above considerations, particularly the procedural lapses, discrepancies in documentation and prolonged incarceration, this Court is inclined to suspend the sentence of the petitioner.

8. Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentence passed by learned trial court, the details of which are provided in the first para of this order, against the appellant- applicant named above 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 learned trial Judge for his appearance in this court on 15.05.2025 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 sureties change their address(s), they will give in w