Suspended NDPS conviction sentence on bail pending appeal due to procedural lapses under Sections 52A, 57 and prolonged incarceration.

ORDER

The petitioner is accused No.4 in Crime No.93 of 2021 on the file of the respondent Police. He was arrested along with three others that they had transported 70 kgs. of ganja in two motorcycles bearing Reg.No.TN57AF 3990 and TN57BU 2088. The petitioner/3^rd accused said to have driven the motorcycle bearing Reg.No.TN57BU 2088 along with the 4^th accused and 34 kgs. of ganja was recovered by the respondent Police from that vehicle. The final report was filed as against the petitioner and three others for the offence under Section 8(c) r/w. 20(b) (ii) (C) and 29(1) of NDPS Act. After the trial, the trial Court, by its judgment dated 04.02.2025, found the petitioner guilty, convicted and sentenced him to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,00,000/-, in default, to undergo two years simple imprisonment. Challenging the judgment of conviction and sentence, the petitioner has filed an appeal before this Court in Crl.A.(MD)No.641 of 2025 and the same was admitted by this Court on 12.06.2025. Along with the appeal, the petitioner has filed this petition to suspend the sentence imposed by the trial Court.

2. The learned counsel appearing for the petitioner has raised the following points:-

(i) P.W.2 deposed that he received the secret information at about

06.30 hrs. on 24.03.2021 and recorded the said information. But, he did not produce the said information before the Court. Therefore, the respondent has not followed the process under Section 42(1) of NDPS Act.

(ii) The respondent has not examined private witness in this case in order to prove the charges levelled as against the petitioner.

(iii) The respondent has not followed the due process of law under Section 50 of NDPS Act. Moreover, the respondent has not properly explained about the search to the petitioner as well as other accused persons. The P.W.2 has admitted that he has not properly examined about the right of search of the accused persons.

(iv) The contraband was recovered on 23.04.2021 and the same was produced on 16.08.2021, nearly, 4 months delay and the delay to produce the property before the trial court was admitted by P.W.2 in this case.

(v) P.W.4 has admitted that he has not received the report under Section

57 of NDPS Act from P.W.2 who has conducted the raid along with his police party. Therefore, Section 57 of the NDPS Act was not complied with.

(vi) The respondent has not taken any samples in the presence of Judicial Magistrate. But, P.W.2 deposed that the respondent has taken the samples at the place of occurrence. Therefore, Section 52A of NDPS Act was not complied with.

According to him, the petitioner was in jail during the investigation from

24.03.2021 to 24.09.2021 and thereafter, he is in jail from 04.02.2025. Therefore, he seeks to suspend the sentence imposed on the petitioner pending the appeal. He further submits this court has suspended the sentence imposed on the accused No.3 vide order dated 16.03.2026 in CrlMP(MD)No.4037 of 2025.

3. The learned Additional Public Prosecutor submits that on the date of occurrence, the contraband was produced before the concerned Judicial Magistrate, however, the learned Judicial Magistrate has returned the same with a direction to produce it before the concerned Special Court. Therefore, it cannot be taken as a ground for suspending the sentence. With regard to non- compliance of Section 52A of NDPS Act, the learned Additional Public Prosecutor submits that it is not a material defect and this issue has already been settled.

4. This Court considered the rival submissions made and also perused the Form-95 dated 24.03.2021.

5. The contraband said to have been seized by the respondent Police on

24.03.2021, was produced before the learned Judicial