Dilawar Khan, Bhuru Khan @APPELLANT@Hash Union Of India

Accused-appellant has laid this second application for suspension of sentence handed down by learned trial Court, while indicting him for offence

punishable under Section 8 read with Section 21 of the NDPS Act. The learned trial Court has found that from the conscious possession of

appellant 260 gms Heroin was recovered, which is above commercial quantity and accordingly the appellant was convicted and handed down

sentence of 10 years’ rigorous imprisonment with fine of Rs.2,00,000/-.

First application for suspension of sentence on behalf of appellant was dismissed on 07.03.2018 as not pressed with liberty to renew the prayer afresh

after three months.

Arguing on this second application for suspension of sentence, it is submitted by learned counsel that appellant has already served sentence for more

than four years and four months, and therefore, considering his first offence and prolonged custody, his sentence is liable to be suspended. In

support thereof, learned counsel has placed reliance on decisions of the Supreme Court in cases of Thana Singh V/s. Central Bureau of Narcotics

[(2013) 2 SCC 603]. and Mayuresh Nandkumar Purohit Vs. Kaushik Manna & Anr. [2018 Cr.L.R.(SC) 251].

Per contra, learned Special Public Prosecutor, Mr. N.K. Rai, has vehemently opposed the application for suspension of sentence. It is argued by

Mr. Rai that considering the commercial quantity of Heroin recovered from appellant, his application is liable to be nixed by invoking rigor of Section

37 of the NDPS Act.

I have bestowed my consideration to the arguments advanced at Bar and perused the impugned judgment as well as materials available on record.

It is borne out from the impugned judgment that learned trial Court, while convicting appellant for the charged offence, has also relied on his disclosure

under Section 67 of the NDPS Act. The admissibility of statement of an accused under Section 67 of the NDPS Act is subject matter of reference

before the Larger Bench of Supreme Court as there are two conflicting judgments, viz., Kanhaiya Lal and Noor Agha and the same is still pending

consideration. Therefore, in the peculiar facts and circumstances of the case, when the foundation of conviction is also statement of the accused

under Section 67 of the NDPS Act, which is still sub-judice, in my view, prolonged custody of the appellant can be taken into consideration for

favourable disposition of the application for suspension of sentence, more particularly, when the appeal is not likely to be heard in near future.

In view thereof, this second application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentence

passed by Special Judge, NDPS Cases No.1, Chittorgarh, vide judgment dated 28.10.2017, in Sessions Case No.35/2010 against appellant-applicant

Dilawar Khan @ Bhuru Khan S/o Ajab Khan, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject

to the condition that he deposits fine of Rs.75,000/within four weeks from today and executes a personal bond in a sum of Rs.1,00,000/- with two

sureties of like amount to the satisfaction of learned trial Judge for his appearance in this Court on 29.10.2018 and whenever ordered to do so till

disposal of the appeal, on the following other conditions:-

That he will appear before the trial Court in themonth of January every year till the appeal is decided.

That if the applicant changes the place ofresidence, he will give in writing his changed address to the trial Court as well as to the counsel in the

High Court.

Similarly, if the sureties change their address(s),they will give in writing their changed address to the trial Court.

The learned trial Court shall keep the record of attendance of accused-applicant in a separate file. Such file be registered as Criminal Misc. Case

related to original case in which the accusedapplicant was tried and convicted. A copy of this order shall also be placed in that file for ready

reference. Criminal Misc. file shall not be taken into account for statistical purposes relating to pendency and disposal of cases in the trial Court. In

case the said accused-applicant does not appear before the trial Court, the learned trial Judge shall report the matter to the High Court for cancellation

of bail.