JUDGMENT :

1. Heard Mr. Serto T. Kom, learned counsel for the appellant and Mr. Sh. Yangya, learned Addl. P.P. for the State.

2. The appellant, who has been arrayed as first accused in Special Trial No. 55 of 2018 on the file of the Special Judge (NDPS) (FTC), Manipur, was convicted under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo 10 years rigorous imprisonment with a fine of Rupees One Lakh to be paid within a period of 12 months from the date of judgment, failing which it was ordered that he shall serve imprisonment for further period of one year. Challenging the conviction and sentence imposed on him, the appellant/first accused has preferred present Criminal Appeal before this Court.

3. According to the prosecution, on 26.02.1999 at about 3.00 P.M., the appellant was arrested at Wabagai Bazar Road Crossing along with another accused viz., Yumnam Sarat Singh Singh (second accused). The Arresting Authority was said to have informed the appellant in writing of his rights under Section 50 of ND & PS Act to be searched in the presence of a Magistrate or a Gazetted Officer. As the appellant consented to have his body searched at the spot itself by any Police Officer and the body of the appellant was searched and a plastic packet of No.4 (Heroine powder) was found. The said packet was kept concealed inside one Nylon bag hanging from the left side shoulder of the appellant. The police registered a case and subjected the accused to trial before the Special Judge (NDPS) (FTC).

4. After trial, the Special Judge (NDPS) (FTC) found the appellant guilty and convicted and sentenced him as stated supra. Assailing the said conviction and sentence, the appellant has preferred the present appeal. Pending appeal, the appellant has sought for suspension of the sentence and release on bail under Section 389 Cr.P.C.

5. Resisting the prayer of the appellant, the State filed affidavit-in- objection stating that under the ND & PS Act, the convicted person is not entitled for suspension of sentence as Section 32-A of the said Act specifically states that notwithstanding anything contained in the Cr.P.C. or any other law for the time being in force, but subject to the provisions of Section 33, no sentence awarded under this Act, other than Section 27, shall be suspended or remitted or commuted. It is stated that, in the present case, the appellant was convicted under Section 21(c) of the Act and as such, sentenced to undergo 10 years imprisonment with fine of Rupees One Lakh and, therefore, he is not entitled to suspension of sentence under Section 389 of Cr.P.C.

6. Heard the submissions of the learned counsel for the appellant and the learned Public Prosecutor for the State with regard to the interim prayer for suspension of sentence.

7. The learned counsel for the appellant submitted that there are lot of infirmities in the impugned judgment and the appellant has got good case on merits in succeeding the appeal. He would submit that the appellant has got family and he has to look after the family. The learned counsel further submitted that the appellant was in custody during trial and in fact, while imposing sentence, he was brought from Manipur Central Jail, Sajiwa. The learned counsel for the appellant then submitted that the appeal would not be taken up for hearing in the near future and, therefore, the appellant is entitled to suspension of sentence pending appeal and the appellant undertakes to abide by the conditions imposed by this Court.

8. The learned counsel next submitted that Section 32-A of ND & PS Act so far as it ousts the jurisdiction of the Court to suspend the sentence imposed on a convict under the Act is unconstitutional. The learned counsel then submitted that when a convicted person is sentenced to a fixed period of sentence and when the convict files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are ex