Heard.

The appellant-applicant has prayed for suspension of his sentence and release of bail. He has been convicted by the Court below for offence under section 8 read with section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for short 'NDPS Act') and sentenced to ten years rigorous imprisonment and a fine of Rs. one lac.; and two years rigorous imprisonment in default of payment of fine.

The facts briefly stated are that the appellant-applicant was found in illegal possession of 360 grams of opium when search was effected on his person on the basis of an information that he was carrying opium while travelling in train.

The learned counsel appearing for the applicant placing reliance upon the decision in the case of Dadu alias Tulsidas v. State of Maharashtra [(2000) 8 SCC 437] contended that the bar under section 32A of the NDPS Act does not come in the way of Courts in exercising their powers under section 389 of the Criminal Procedure Code in the matter of suspension of sentence. It was further contended that there has been non-compliance of section 50 of the NDPS Act inasmuch as the material available on record goes to show that accused was not apprised of his right under section 50 of the NDPS Act to have his search in presence of a Gazetted Officer or a Magistrate. and therefore the prosecution has failed to prove that the appellant-applicant was in possession of the opium and his conviction, therefore, is not sustainable. It was also submitted that the independent witnesses too on the search have not supported the prosecution case and that also goes to help the appellant-applicant. In this connection reliance was placed on the judgment in the case of K. Mohanan v. State of Kerala [(2000) 10 SCC 222].

The learned counsel appearing for State vehemently opposed the prayer for bail and contended that although section 32A of the NDPS Act does not create a bar in the matter of suspension of sentence by the Criminal Courts, the appellant-accused would be entitled to release on bail only and strictly subject to the conditions spelt out in section 37 of the Act as was held by the Hon'ble Apex Court in the case of Dadu alias Tulsidas v. State of Mahamshtm (supra). Learned counsel for the State further submitted that under section 37(1) (b) (ii) of the NDPS Act, the Court has to be satisfied on two counts before directing the release of the accused on bail; firstly, the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty and secondly that the accused is not likely to commit any offence while on bail. Learned counsel for State laid emphasis on the second point.

Sub-section (2) of section 37 of the NDPS Act contemplates that the limitations in the matter of grant of bail specified in clause (b) of sub-section (I) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.

The appellant-applicant hails from Rajasthan and as per prosecution story, he was caught at Railway Station, Guna while travelling in Kota-Beena passenger running in between Rajasthan and the Madhya Pradesh. He has not deposited the fine nor has the capacity to pay, as stated on his behalf. On perusal of the impugned judgment, it appears that he was on bail during trial and was available till conclusion of trial and on the date of judgment, he was taken into custody. It indicates that the liberty on bail was not misused by the appellant applicant.

Having considered the material on record and keeping in mind the ratio in the decisions referred to above, and also the fact that the accused-appellant was available during trial for about a period of 4 years after his released on bail, justifiable ground appears to have been made for grant of suspension of sentence to the appellant-applicant and his release on bail. However, in order to secure his presence and to abide by the order of this Court in appe