The court held that the rigor of Section 37 of the NDPS Act can be toned down for suspending a sentence if the appellant presents strong grounds to challenge the conviction and the appeal is unlikely to be heard in the near future.

Order

1. Heard learned counsel for the appellant-applicant and learned Public Prosecutor and perused the material available on record.

2. The appellant-applicant herein has been convicted for offence punishable under Section 8 /15 of NDPS Act vide judgment dated 03.09.2025 passed by learned Special Judge, NDPS Act Cases (Additional Sessions Judge), Gulabpura District Bhilwara in Sessions Case No.20/2016 (CIS No.07/2016) and has been sentenced to 10 years RI along with fine.

3. Learned counsel submits that learned trial Court has erred in convicting and sentencing the appellant-applicant as mentioned above. Learned trial Court has not appreciated the evidence in right and correct perspective. It is contended that at the time of alleged recovery, the seizure officer was not competent to conduct search and seizure proceedings as he was not holding the post of SHO and he was not authorized to conduct such proceedings. As per the prosecution case, the SHO was available in the police station. Counsel further contends that only Inspector or Sub- Inspector who were posted as SHO can make such seizure and arrest. Learned counsel further submits that samples, sent to FSL for analysis were not drawn in presence of the jurisdictional Magistrate and therefore, the FSL report has no evidentiary value. It is submitted that no independent witness was associated in search and seizure proceedings. Counsel further submits that the appellant has already suffered incarceration of 2 years and 8 months and there are bleak chances of hearing and disposal of the appeal in near future. The appellant was on bail during trial and he did not misuse the liberty of bail during pendency of trial.

4. Learned Public Prosecutor opposes submissions made by the learned counsel for appellant. He submits that huge quantity of contraband has been recovered from the appellant and therefore, rigor of Section 37 of the NDPS Act is clearly attracted and thus, he prays for dismissal of the instant application for SOS.

5. Upon a consideration of the arguments advanced on behalf of the appellant and having regard to the facts and circumstances as available on record so also the fact that there is no immediate prospect of this appeal being heard and disposed of in near future, this Court is of the opinion that rigor under Section 37 of NDPS Act can be toned down. The appellant has available to him strong grounds to assail the impugned judgment of conviction and sentence. Thus, it is a fit case for suspending the sentences awarded to the applicant-appellant during pendency of the instant appeal.

6. Accordingly, the instant application for suspension of sentence filed under Section 430 (2) BNSS is allowed and it is ordered that the sentences passed by learned Special Judge, NDPS Act Cases (Additional Sessions Judge), Gulabpura, District Bhilwara in Sessions Case No.20/2016 (CIS No.07/2016) against the applicant-appellant Farukh @ Kalu S/o Shri Naseer Umar Kayamkhani shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail provided he executes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in the court on 18.05.2026 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

1. That he shall not commit similar offence during pendency of the appeal. He will appear before the trial Court in the month of January