The court has the discretion to suspend a jail sentence under Section 389 of the Code of Criminal Procedure, 1973, based on the circumstances and evidence presented.

Order

1. Heard on IA No.2559/2022, first application under Section 389 (1) of the Code of Criminal Procedure, 1973 for suspension of jail sentence and grant of bail filed on behalf of the appellant.

2. The present appellant has been convicted and sentenced by learned Special Judge (NDPS Act), Mandsaur District Mandsaur (MP) in Special Sessions Trial No.02/2012 vide judgment dated 31.01.2022, as under: -

Conviction Sentence

Section Act RI Fine amount Imprisonment in lieu of fine

8 r / w 18 (C) NDPS Act 3 years Rs.50,000/- 6 months RI

3. Counsel for the appellant has submitted that the appellant was arrested on 23.12.2011 and after that, he was in jail up to 17.07.2012 including police custody and thereafter from the date of the impugned judgment he is in jail, and as such, he has suffered incarceration for more than eight months.

4. It is further submitted that from the possession of the appellant a noncommercial quantity of 1.370 kilograms of opium has been seized. It is submitted that there is a violation of mandatory provisions Section 50, 42 (2) and 55 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein after referred to as the Act) and the prosecution witnesses have not supported the case of the prosecution and turned hostile. Counsel has also submitted that there is material contradiction, omissions and discrepancies in the testimony of the witnesses.

5. Hence, it is prayed that application for suspension of jail sentence be allowed.

6. Per contra, learned Panel Lawyer for the respondent / State has opposed the prayer for suspension of jail sentence and prays for its rejection.

7. Having considered the rival submissions and on perusal of the record as also the evidence brought on record in the present case, this Court is of the opinion that the application for suspension of jail sentence filed on behalf of the appellant deserves to be allowed.

8. Accordingly, without expressing any opinion on merits of the case, IA No.2559/2022 is allowed, subject to depositing the fine amount, if any, and it is directed that on furnishing a personal bond by the appellant in the sum of Rs.50,000/- (Rupees fifty thousand only) with a solvent surety in the like amount to the satisfaction of the learned trial Court, for his / her regular appearance before concerned trial Court, the execution of the custodial part of the sentence imposed against the appellant (s) shall remain suspended, till the final disposal of this appeal.

9. The appellant (s), after being enlarged on bail, shall mark his / her presence before the concerned trial Court on 11.07.2022 and on all such subsequent dates, as may be fixed by the concerned Court in this regard.

10. In the meanwhile, let the original record (physical) of the case from the concerned trial Court be requisitioned.

11. Let the matter be listed on admission.