Union Of India, N.C.B. Through Special P.p vs For Respondent(s)

: Mr. Ali Mohd. Khan For Respondent(s) : Mr. Tej Prakash Sharma, Special PP for NCB HON'BLE MR. JUSTICE PRAMIL KUMAR MATHUR 09/09/2025 Order

1. The appellant has been convicted by the learned Special Judge, NDPS Cases, Jaipur Metropolitan-I vide judgment dated

25.01.2024 in Session Case (NDPS Case) No.10/2021 for the offences under Sections 8/18 and 8/29 of NDPS Act and sentenced for fifteen years rigorous imprisonment respectively with default stipulation.

2. Heard learned counsel for the appellant and learned Special Public Prosecutor on the application for suspension of sentence and perused the material available on record.

3. Learned counsel for the appellant submits that the learned Trial Court has committed serious errors of both law and fact in convicting and sentencing the accused-appellant. The prosecution (2 of 5) [SOSA-763/2024] has completely failed to establish the case against the accused- appellant beyond reasonable doubt. He further contended that there are material contradictions and infirmities in the prosecution case and only on the basis of the statement of co-accused, appellant has falsely been implicated in this case. Nothing has been recovered from him. In the present case around 10 kg of opium is alleged to be due for supply to him by the co-accused- Ramdeen. The statements recorded under Section 67 of NDPS Act, are not admissible in evidence. There are no iota of any conversation regarding sale or purchase of contraband article. The appellant is languishing in jail since last around 5 years and the disposal of appeal will take considerable time, therefore, no fruitful purpose would be served by keeping the appellant in further custody, hence the suspension of sentence application of the appellant may be allowed.

4. In support of his contentions, he has placed reliance on the following judgments of Hon’ble Supreme Court:- (i) Rajesh Vs. The State of Rajasthan, Special Leave to Appeal (Crl.) No.4290/2024 decided on 02.08.2024 (ii) Firdoskhan Khurshidkhan Vs. The State of Gujarat and Anr. Reported in 2024 (0) INSC 351.

5. Learned Special Public Prosecutor has vehemently opposed the application for suspension of sentence and submitted that the recovered contraband involved in the present matter is above the commercial quantity. Therefore, the provisions of Section 37 of NDPS Act is required to be satisfied and only after the compliance of above legal provision, the suspension of sentence can be allowed. He further submitted that there is ample evidence, which (3 of 5) [SOSA-763/2024] shows the involvement of the present appellant in the matter. The call details shows that the appellant is a party to a criminal conspiracy to commit the charged offence. He further argued that the as against the sentence imposed of 15 years, the appellant has not undergone even the 50% of sentence imposed. He vehemently stated that there is criminal history of three cases against the accused-appellant. Therefore, the application for suspension of sentence of the appellant is liable to be dismissed. He has submitted the following judgments to buttress his arguments:-

1. State of Kerala etc. Vs. Rajesh etc. (Criminal Appeal No(s).154-157 of 2020 dated 24.01.2020

2. Union of India Vs. Rattan Mallik @ Habul (Criminal Appeal No.137 of 2009) dated 23.01.2009

3. Union of India through Narcotics Control Bureau, Lucknow Vs. Md. Nawaz Khan (Criminal Appeal No.1043 of 2021) dated 22.09.2021

4. Dadu @ Tulsidas Vs. State of Maharashtra (WP (Crl.) 169 of 1999) dated 12.10.2000

7. I have heard the rival contentions and scanned the matter. This fact was not disputed that the contraband involved in the present matter is 40.610 kg (opium), which is higher side of commercial quantity.

8. This fact was also not disputed that the provision of Section 37 of NDPS Act is applicable at the appellate stage also, which runs as under:- “(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (4 of 5) [SOSA-763/2024] (a)……… (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

9. It is obvious from the language of Section 37 (1)(b) that the Court must adopt a negative attitude towards bail but may turn positively, if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of offence under the Act and the fact that he is not likely to commit any offence while on bail. Both the tests must be satisfied before appellant can be released on bail.

10. A bare perusal of the material available on record shows that the prosecution has produced Ex.P73, Ex.P74 and Ex.P88 along with Ex.P93, call details report which reflects regular conversation during relevant dates among the accused themselves. The prosecution has also relied on the disclosure made under Section 67 of NDPS Act (Ex.P188) according to which the appellant has admitted since last 15 years he was taking supply of narcotics drugs from the co-accused-Ramdeen. As against the sentence of 15 years imposed by the trial Court the appellant has undergone only 5 years, which is not significant.

11. Therefore, in view of the material available on record and the rigour of the Section 37 of NDPS Act as well as insignificant period of the custody as against the sentence of 15 years with criminal (5 of 5) [SOSA-763/2024] past of three cases, I am not inclined to allow the application for suspension of sentence.

12. Hence, the application for suspension of sentence is hereby dismissed. Arun/3 (PRAMIL KUMAR MATHUR),J