IMPORTANT POINT
The main legal point established in the judgment is that the appellate Court has the discretion to suspend the sentence of a person convicted under the NDPS Act pending appeal, subject to the conditions set out in the Act and based on the facts and circumstances of each case.

JUDGMENT

1. This petition has been filed by the petitioner under Section 389 Cr.P.C. praying to suspend the order of conviction and fine and the sentence of the petitioner and execution thereof awarded vide judgment dated 17.12.2020 and the order of sentence dated 28.12.2020 passed by the learned Special Judge, Manipur in Special Trial Case No.100 of 2018 till the disposal of the connected appeal and to grant bail to the petitioner.

2. The petitioner, who has been arrayed as accused No.4 in Special Trial Case No.100 of 2018 on the file of the learned Special Judge, ND&PS, Manipur at Lamphelpat was convicted under Sections 21(c)/22(c) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for short, 'the said Act'] and sentenced to undergo 15 years rigorous imprisonment each with a fine of Rs.1,00,000/- each to be paid within a period of one year from the date of sentence, failing which the petitioner shall serve another six months rigorous imprisonment. Challenging the conviction and sentence imposed on the petitioner, he has filed the criminal appeal before this Court.

3. Along with the appeal, the petitioner has filed the petition seeking to suspend the sentence stating that he has a very good case on merits and likely to succeed in the appeal filed by him on the ground that the mandatory provisions as prescribed under the said Act were not complied with by the prosecution.

4. The learned counsel for the petitioner submitted that there are lot of infirmities in the impugned judgment and that the petitioner has a good case on merits in succeeding the appeal. He would submit that the petitioner is a bachelor and an educated youth and he is firmly rooted in society with his family members living very peacefully and also he is the only bread winner of his family. The learned counsel further submitted that the petitioner was in custody during trial and, in fact, while imposing sentence, he was brought from Manipur Central Jail, Sajiwa.

5. The learned counsel next submitted that the appeal would not be taken up for hearing in the near future and, therefore, the petitioner is entitled to suspension of sentence pending appeal and that the petitioner undertakes to abide by the conditions imposed by this Court.

6. The learned counsel further submitted that Section 32-A of the said Act so far as it ousts the jurisdiction of the Court to suspend the sentence imposed on a convict under the Act is unconstitutional and 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 exceptional circumstances.

7. The learned counsel next submitted that the petitioner was in custody during trial and he had fully co-operated in the trial. According to the learned counsel, the detention of the petitioner during pendency of the appeal is a severe punishment to all his family members and thus prays for suspension of sentence pending appeal.

8. Per contra, the learned Additional Public Prosecutor submitted that the petitioner is not entitled to suspension of sentence, as it is barred by Section 32-A of the said Act. He would submit that since the petitioner was convicted under Sections 21(c)/22(c) read with Section 29 of the Act and sentenced to undergo 15 years of rigorous imprisonment and also he was aged 30 years at the time of commission of offence, the petitioner is not entitled to suspension of sentence. The learned Additional Public Prosecutor further submitted that the High Court cannot override the bar provided under Section 32-A of the Act and that the petitioner is not entitled to the benefit of Section 389 Cr.P.C. and therefore, the benefit cannot be extended to him.

9. The learned Additional Public Prosecutor then submitted that the Investigating Officer has examined number of witnesses in connection with the case and from their oral evidences and the documents p