The absence of narcotic recovery from the appellant's possession creates reasonable doubt, justifying the suspension of the sentence.

ORDER :

I.A. No.12532 of 2024

1. The instant interlocutory application has been filed on behalf of appellant No.1 viz. Dilip Kumar @ Ravi Kumar under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 for suspension of sentence dated 30.08.2024 passed by learned Sessions Judge-cum-Special Judge (NDPS Act), Chatra in connection with N.D.P.S. Case No.133 of 2022, arising out of Rajpur P.S. Case No.24 of 2022 whereby and whereunder, the appellant No.1 has been convicted for the offence under Section 18 of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment (R.I.) for 10 years with fine of Rs.1,00,000/- and in default of payment of fine, further R.I. for one year.

2. It has been contended on behalf of the appellant No.1 that even if the testimony of the entire witness is taken into consideration in entirety, then also no case of narcotic substance will be said to be made out against the appellant No.1 in absence any recovery having been made from the physical or conscious possession of the appellant No.1.

3. It has been submitted by referring to the testimony of P.W.1 who had deposed in his testimony that no narcotic substance has been recovered, only Rs.9000/- cash and one motorcycle were recovered and seized at the door of the Gendlal Singh, co-accused, from whose house total 14.200 kg of opium was recovered.

4. Learned counsel, based upon the aforesaid ground, has submitted that it is, therefore, fit case for suspension of sentence.

5. On the other hand, Mr. Bhola Nath Ojha, learned counsel appearing for the State while opposing the prayer for suspension of sentence has submitted that although there is no recovery of the narcotic substance from the physical or conscious possession of the applicant No.1 but on his confession, the narcotic substance has been recovered from the other houses. As such, it is incorrect on the part of the appellant to take a ground that merely there was no recovery of the narcotic substance from the physical or conscious possession of the appellant No.1, the prosecution has miserably failed in proving the charge against appellant No.1, hence, it is not the fit case for suspension of sentence.

6. We have heard learned counsel for the parties and gone through the finding recorded by the learned Trial Court in the impugned judgment as also the testimony of witnesses in the lower court record and the material exhibits as available therein.

7. We, in order to appreciate grounds advanced on behalf of the parties have gone through the testimony of P.W.1, the Investigating Officer and found there from that specifically, it has been deposed by them that save and except Rs.9000/- cash and one motorcycle, nothing else has been recovered from the possession of appellant No.1.

8. This Court, in view of the aforesaid, is of the view that it is a case where the appellant No.1 has been able to make out a prima facie case for suspension of sentence.

9. Accordingly, the instant interlocutory application being I.A. No.12532 of 2024 stands allowed.

10. In consequence thereof, the appellant No.1, above named, is directed to be released on bail during pendency of the instant appeal on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of learned Sessions Judge-cum-Special Judge (NDPS Act), Chatra in connection with N.D.P.S. Case No.133 of 2022, arising out of Rajpur P.S. Case No.24 of 2022.

11. It is made clear that any observation made herein will not prejudice the issue on merit as the appeal is lying pending for its consideration.