Doubts in the prosecution's case regarding the seizure of contraband justified the suspension of the appellant's sentence.

JUDGMENT :

IA No.13455 of 2024

This instant interlocutory application has been filed for suspension of sentence against the Judgment of conviction dated 24.05.2024 and order of sentence dated 03.06.2024 passed by learned Sessions Judge-cum-Special Judge, NDPS Act, Chatra, in connection with NDPS Case No.98 of 2022, arising out of Kunda P.S. Case No.21 of 2021, whereby and whereunder the appellant has been convicted under Section 18 of the NDPS Act and directed to undergo R.I. for 14 years and also directed to pay a fine of Rs.1,50,000/- and in default of payment of fine, further directed to undergo R.I. for one and half year and the period of detention undergone be set off.

2. The learned counsel appearing for the appellant has submitted that it is a case where the identically co-accused person has already been directed to be released on bail by passing order of suspension of sentence as it would evident from the annexure-1 appended with the interlocutory application wherein one co-convict, namely, Mr. Bechu Yadav, the appellant in Cr. A. (DB) No. 1099 of 2024 has been directed to be released on bail vide order dated 02.12.2024 from whose possession, the quantity of contraband (afim) has said to be recovered to the extent of 5.660 kg while from the possession of the present appellant, 4.640 KG (afim) has said to be recovered. It has further been contended on behalf of the appellant that it is case where although the appellant has been convicted under Section 18 of the NDPS Act, but the factum of the seizure cannot be said to be proved in view of the fact that as per the allegation the contraband has been said to be recovered from the house of the present appellant but the investigating officer in a very categorical word has deposed that he cannot say that from whose house, from where the contraband has been recovered, belongs to whom.

3. It has been contended that when the factum of the seizure itself has been doubted by the investigating officer, the entire prosecution version will be said to be demolished.

4. Learned counsel appearing for the appellant based upon the aforesaid grounds submitted that it is a fit case for suspension of sentence.

5. While on the other hand, learned Addl. Public Prosecutor appearing for the respondent-State has vehemently opposed the prayer for bail so far as the issue of merit is concerned but he is fair enough to say that the case of the present appellant is identically placed to that case of Mr. Bechu Yadav who has been directed to be released on bail by this Court vide order dated 02.12.2024 passed in Cr. A. (DB) No. 1099 of 2024.

6. We have heard learned counsel for the parties and gone across the findings recorded by the learned trial court in the impugned Judgment as also the testimonies of the witnesses and other material exhibit available therein.

7. As per the prosecution version, 4.640 KG of afim has been said to be recovered from the house of the present appellant. The place of occurrence has also been said to be the house of the present appellant from where the contraband has been said to be recovered, but the investigating officer, PW-5 has doubted the place of recovery, the moment he has deposed in paras 26, 27 and 28 of his cross-examination, wherein it has been deposed that no videography or photography related to the incident was done by me at the scene of the incident and the incident did not happen in front of me. It has also been deposed that what objectionable material has been recovered from which house, he cannot say. Further he has deposed that there was no signboard or name plate has been found from the place of recovery. He has also stated at para 38 that the house, which was searched, belongs to whom, he cannot say.

8. Considering the aforesaid fact, this Court is of the view that the appellant has made out a prima facie case for suspension of sentence as these facts have also not been disputed by the learned Addl. Public Prosecutor appearing for the State.

9. In consequence, t