IMPORTANT POINT
Suspension of sentence should be considered liberally unless there is any statutory restriction, and the appellate Court has the discretion to suspend a sentence awarded under the NDPS Act, emphasizing the need for judicious discretion in considering such applications.

JUDGMENT

[1] This petition has been filed by the petitioner under Section 389(1) Cr.P.C praying to suspend impugned judgment dated 26.06.2020 and sentence dated 30.06.2020 imposed on the petitioner in Sessions Trial Case No. 113/2015/16 of 2016 on the file of the learned Special Judge, NDPS, Lamphelpat, Manipur and to release him on bail pending criminal appeal.

[2] By the judgment dated 26.06.2020 in Sessions Trial Case No. 113/2015/16 of 2016, the learned Special Judge, convicted the petitioner for the offence under Section 18(b) of the NDPS Act, 1985. After giving conviction judgement, the learned Special Judge, directed to list the matter on 29.06.2020 for sentence hearing and the petitioner was sent to jail. On 30.06.2020, the petitioner was produced before the learned Special Judge, and the learned counsel for the parties were heard, particularly, the petitioner and his counsel, qua sentence to be awarded to the petitioner.

[3] Upon consideration of the rival submissions and upon perusal of the relevant Section under which the petitioner was convicted, the learned special Judge, sentence the petitioner to undergo 15 years rigorous imprisonment and to pay fine of Rs.1 lakh within a period of six months from the date of passing of the sentence order, in default, to undergo another period of six months imprisonment. The Learned Special Judge has also ordered that the period of detention undergone prior to the conviction by the petitioner shall be set off against the sentence of imprisonment within the ambit of Section 428 of Cr.P.C.

[4] Aggrieved by the conviction and sentence imposed on the petitioner, the petitioner has filed Criminal Appeal No.11 of 2020 before this Court. Along with the appeal, the petitioner has filed petition seeking to suspend the sentence stating that he is the sole earning member of his family and his wife, who is aged around 54 years was suffering from a chronic kidney disease and undergoing a regular hemodialysis therapy in the form of biearbonate dialysate at Shija Hospitals and Research Institute since December, 2019 for 8-10 times per month for about four hours at a time. It is stated that the ailment required much attention and care from near and dear ones.

[5] The learned counsel for the petitioner submitted that there are lot of infirmities in the impugned judgement and the petitioner has got good case on merits in succeeding the appeal. He would submit that the trial Court erred in deciding that the petitioner failed to discharge his burden regarding conscious possessions of opium by adducing defence evidence to counter the version of the prosecution, because of the reason that when there is no issue of possession of the contraband by the petitioner and as such there is no duty on the part of the accused to discharge himself from any burden regarding conscious possession and in fact the trial Court has also recorded in the finding that the prosecution witnesses had stated that opium was not seized from the petitioner.

[6] The learned counsel further submitted that the prosecution failed to comply with the provisions of Sections 41 and 42 of the NDPS Act and in fact during trial, the prosecution failed to produce the polythene bag of light blue and white colour marked as WIN, which is allegedly used to carry the contraband suspected opium and which is also included in the seizure list and that there is no convincing explanation forthcoming from the prosecution. However, all these facts have been omitted to consider by the trial Court and erred in convicting the petitioner.

[7] The learned counsel further submitted that the petitioner was in custody during trial and in fact, while imposing sentence, he was brought from the jail.

[8] The learned counsel for the petitioner then submitted that the criminal 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 condi