Power of suspension of sentence awarded is available to Appellate Court.

Per K. N. BASHA, J.

1. V. Gopinath, learned Senior counsel appearing for the petitioner submitted that the petitioner is A1 and he has been convicted along with three accused for the alleged offences under Sections 8(c) read with Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotrophic Substances Act (hereinafter referred to as “the Act”), and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,00,000/- in default, to undergo one year rigorous imprisonment.

2. The learned Senior counsel contended that there are arguable points involved in the appeal filed by the petitioner herein. It is also submitted by the learned Senior counsel that the learned Trial Judge disbelieving the prosecution case acquitted the other co-accused, viz., A-4 and A-5, but convicted the petitioner herein who has been arrayed as A-1 along with A-2 and A-3 believing the very same set of evidence. The learned Senior counsel vehemently contended that the prosecution case suffers from serious infirmities on the following grounds :

(1) There is inconsistency and discrepancy in respect of the alleged seizure of the contraband, viz., Ganja, as according to the prosecution A-1 identified two Ganja bags each containing 30 kgs and 15 kgs of Ganja totalling to 45 kgs., but on reweighing the weight of the contraband on the application filed by the accused, only 21.650 kgs was found and only such quantity is marked as M.Os.9 and 10 in respect of the petitioner/A-1.

(2) The contraband was seized only in the presence of official witnesses, viz., P.W.3, Sub Inspector of Police and one Ravi Kumar, Head Constable and among them Ravi Kumar was not examined by the prosecution and the explanation given by the prosecution for the non-examination of independent witnesses is unacceptable and unbelievable.

3. In support of the above said contentions the learned Senior counsel placed reliance on the decision of the Hon‘ble Supreme Court in Rajesh Jagdamba Avasthi v. State of Goa AIR 2005 SC 1389 : (2005) 9 SCC 773 : 2004 (4) Crimes 347 for the proposition that the discrepancy as regards the weight of a contraband is not a minor discrepancy but such discrepancy is a material and vital discrepancy and in the event of prosecution not explaining such discrepancy, the credibility of the recovery proceedings is considerably eroded.

4. The learned Senior counsel also placed reliance on the decision of the Hon‘ble Supreme Court in Dadu @ Tulsidas Etc. v. State of Maharashtra etc AIR 2000 SC 3203 : (2000) 8 SCC 437 : 2000 (7) Supreme 38 for the proposition that Section 32-A of the Act in so far it outsets the jurisdiction of the Court to suspend the sentence awarded to a convict under the Act is unconstitutional and sentence awarded by the trial Court under the Act may be suspended by the Appellate Court. The learned Senior counsel also brought to the notice of this Court that this Court suspended the sentence in respect of the accused who has found to be in possession of commercial quantity of contraband in Crl.M.P.No. 564 of 2004 in Crl.A.No. 877 of 2004 dated 9.12.2004 and in Crl.M.P.No. 1 of 2006 in Crl.A.No. 256 of 2005 dated 29.09.2006.

5. Per contra, learned Additional Public Prosecutor contended that there is no infirmity in the prosecution case. It is submitted by the learned Additional Public Prosecutor that the trial Judge considered the discrepancy said to have been found in the weight of Ganja seized form A-1 and also produced before the Court. It is pointed out by the learned Additional Public Prosecutor that the trial Judge observed that earlier the contraband might have been mixed with mud and sand and therefore when it was reweighed on the application filed by the accused, the weight was reduced to 21.650 kgs form 45 kgs. and even after re-weighment the quantity of 21.650 kgs also amounts to commercial quantity. Therefore, it is submitted by the learned Additional Public Prosecutor that there is no prima facie ground made out