Judgment : Per K. N. BASHA, J. 1. V. Gopinath, learned Senior counsel appearing for the petitioner submitted that the petitioner is A1 and he has been convicted along with three accused for the alleged offences under Sections 8(c) read with Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotrophic Substances Act (hereinafter referred to as “the Act”), and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,00,000/- in default, to undergo one year rigorous imprisonment. 2. The learned Senior counsel contended that there are arguable points involved in the appeal filed by the petitioner herein. It is also submitted by the learned Senior counsel that the learned Trial Judge disbelieving the prosecution case acquitted the other co-accused, viz., A-4 and A-5, but convicted the petitioner herein who has been arrayed as A-1 along with A-2 and A-3 believing the very same set of evidence. The learned Senior counsel vehemently contended that the prosecution case suffers from serious infirmities on the following grounds : (1) There is inconsistency and discrepancy in respect of the alleged seizure of the contraband, viz., Ganja, as according to the prosecution A-1 identified two Ganja bags each containing 30 kgs and 15 kgs of Ganja totalling to 45 kgs., but on reweighing the weight of the contraband on the application filed by the accused, only 21.650 kgs was found and only such quantity is marked as M.Os.9 and 10 in respect of the petitioner/A-1. (2) The contraband was seized only in the presence of official witnesses, viz., P.W.3, Sub Inspector of Police and one Ravi Kumar, Head Constable and among them Ravi Kumar was not examined by the prosecution and the explanation given by the prosecution for the non-examination of independent witnesses is unacceptable and unbelievable. 3. In support of the above said contentions the learned Senior counsel placed reliance on the decision of the Hon‘ble Supreme Court in Rajesh Jagdamba Avasthi v. State of Goa AIR 2005 SC 1389 : (2005) 9 SCC 773 : 2004 (4) Crimes 347 for the proposition that the discrepancy as regards the weight of a contraband is not a minor discrepancy but such discrepancy is a material and vital discrepancy and in the event of prosecution not explaining such discrepancy, the credibility of the recovery proceedings is considerably eroded. 4. 4. The learned Senior counsel also placed reliance on the decision of the Hon‘ble Supreme Court in Dadu @ Tulsidas Etc. v. State of Maharashtra etc AIR 2000 SC 3203 : (2000) 8 SCC 437 : 2000 (7) Supreme 38 for the proposition that Section 32-A of the Act in so far it outsets the jurisdiction of the Court to suspend the sentence awarded to a convict under the Act is unconstitutional and sentence awarded by the trial Court under the Act may be suspended by the Appellate Court. The learned Senior counsel also brought to the notice of this Court that this Court suspended the sentence in respect of the accused who has found to be in possession of commercial quantity of contraband in Crl.M.P.No. 564 of 2004 in Crl.A.No. 877 of 2004 dated 9.12.2004 and in Crl.M.P.No. 1 of 2006 in Crl.A.No. 256 of 2005 dated 29.09.2006. 5. Per contra, learned Additional Public Prosecutor contended that there is no infirmity in the prosecution case. It is submitted by the learned Additional Public Prosecutor that the trial Judge considered the discrepancy said to have been found in the weight of Ganja seized form A-1 and also produced before the Court. It is pointed out by the learned Additional Public Prosecutor that the trial Judge observed that earlier the contraband might have been mixed with mud and sand and therefore when it was reweighed on the application filed by the accused, the weight was reduced to 21.650 kgs form 45 kgs. and even after re-weighment the quantity of 21.650 kgs also amounts to commercial quantity. Therefore, it is submitted by the learned Additional Public Prosecutor that there is no prima facie ground made out for suspending the sentence imposed on the petitioner. 6. I have carefully considered the rival contentions put forward by either side and also perused the entire materials available on record including the impugned judgment of conviction. 7. The sum and substance of the prosecution case is that on 29.6.2003 at 12.00 hours, the police raiding party of NIB, CID, intercepted a lorry bearing registration No.AP 26 U 3335, and found A-1 to A-5 in the cabin of the lorry and among them A-4 and A-5 are the driver and cleaner. 7. The sum and substance of the prosecution case is that on 29.6.2003 at 12.00 hours, the police raiding party of NIB, CID, intercepted a lorry bearing registration No.AP 26 U 3335, and found A-1 to A-5 in the cabin of the lorry and among them A-4 and A-5 are the driver and cleaner. Thereafter, the police party searched the accused 1 to 5 in the presence of P.W.3, Sub Inspector of Police and one Ravi Kumar, Head Constable and after observing the formalities as contemplated under the Act, seized two gunny bags said to have been identified by A-1, the petitioner herein containing 30 kgs and 15 kgs of Ganja respectively. Likewise A-2 and A-3 also identified certain gunny bags. A mahazar, Ex.P.8, was prepared for the recovery of the contraband and the lorry, which was attested by P.W.3, Sub Inspector of Police and Head Constable one Ravi Kumar. Thereafter Accused Nos.1 to 5 were arrested and case was registered against them for the alleged offences, as stated above. 8. It is also pertinent to note that on the application filed by the accused the contraband was reweighed and though A-1, the petitioner herein said to have been found in possession of 45 kgs of Ganja in two gunny bags, after re-weighment, it was found only 21.650 kgs in respect of the contraband, alleged to have been seized as identified by A-1. Therefore the undisputed fact remains that there is a material discrepancy between the quantities of the contraband said to have been seized from A-1 and the quantity ultimately reweighed and found before the Court at the instance of the accused. This Court is of the considered view that it cannot be ignored that the discrepancy in respection of the weight of the contraband said to have been seized as identified by A-1 and ultimately re-weighed and found is not a minor one. The difference between the quantity, at the time of alleged seizure and ultimately found after reweighment, is to the extent of 50%. As contended by the learned Additional Public Prosecutor after reweighment the alleged quantity of Ganja fixed in respect of A-1 is 21.650 kgs which comes under the category of commercial quantity. The Act contemplates that 20 kgs and above considered to be as commercial quantity. The variation is only to the extent of 1.650 kgs. As contended by the learned Additional Public Prosecutor after reweighment the alleged quantity of Ganja fixed in respect of A-1 is 21.650 kgs which comes under the category of commercial quantity. The Act contemplates that 20 kgs and above considered to be as commercial quantity. The variation is only to the extent of 1.650 kgs. It is also to be borne in mind that the seizure was effected only in the presence of official witnesses, viz., P.W.3, Sub Inspector of Police and one Ravi Kumar, Head Constable and the prosecution has withheld the examination of the said Ravi Kumar. 9. Before proceeding to consider the matter on merits, viz., regarding the consequences of the above said infirmity in the prosecution case, it is relevant to deal with the position of law in respect of the suspension of sentence pending appeal under the Act. 10. Initially under Section 32- of the Act, there is a specific bar for granting suspension of sentence pending appeal. Section 32-A of the Act reads hereunder : “32-A. No suspension, remission or commutation in any sentence awarded under this Act Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force but subject to the provisions of Section 33, in sentence awarded under this Act (other than Section 27) shall be suspended or remitted or commuted”. 11. In an earlier decision in Makbool Singh v. State of Punjab AIR 1999 SC 1131 : (1999) 3 SCC 321 : (1999) MLJ (Crl) 382, the Hon‘ble Supreme Court held that Section 32-A of the Act was a complete bar for the appellate Court to suspend the sentence passed on persons convicted for the offence under the Act pending appeal. But as on date in a latter decision in Dadu @ Tulsidas Etc. v. State of Maharashtra etc (supra), the Hon‘ble Apex Court has held as follows : “22. Judged from any angle, the section in so far as it completely debars the appellate courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32A in so far it ousts the jurisdiction of the Court to suspend the sentence awarded to a convict under the Act is unconstitutional. Thus Section 32A in so far it ousts the jurisdiction of the Court to suspend the sentence awarded to a convict under the Act is unconstitutional. We are, therefore, of the opinion that Allahabad High Court in Ram Charans case (supra) has correctly interpreted the law relating to the constitutional validity of the Section and the judgment of Gujarat High Court in Ishwarsingh M. Rajputscase be held to be good law. 23. Despite holding that Section 32A is unconstitutional to the extent it affects the functioning of the criminal courts in the country, we are not declaring the whole of the section as unconstitutional in view of our finding that the Section, in so far as it takes away the right of the Executive to suspend, remit and commute the sentence, is valid and intra vires of the Constitution. The declaration of Section 32A to be unconstitutional, in so far as it affects the functioning of the Courts in the country, would not render the whole of the section invalid, the restriction imposed by the offending section being distinct and severable”. 12. In the above said decision, the Hon‘ble Supreme Court ultimately held as follows: “ 24. Holding Section 32A as void in so far as it takes away the right of the Courts to suspend the sentence awarded to a convict under the Act, would neither entitle such convicts to ask for suspension of the sentence as a matter or right in all cases nor would it absolve the Courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act”. In view of the above said decision of the Apex Court, it is now well settled that the sentence awarded under the Act can be suspended by the Appellate Court subject to the conditions contemplated under Section 37 of the Act is satisfied. 13. In view of the above said decision of the Apex Court, it is now well settled that the sentence awarded under the Act can be suspended by the Appellate Court subject to the conditions contemplated under Section 37 of the Act is satisfied. 13. Section 37 of the Act reads hereunder: (1) Notwithstanding anything contained in the 2 2 of 1974),- (a) every offence punishable under this Act shall be cognizable ; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A 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. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the 22 of 1974) or any other law for the time being in force, on granting bail. Therefore Section 37 of the Act contemplates twin conditions before granting the order of suspension of sentence pending appeal, viz., (1) The satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and (ii) That the accused is not likely to commit any offence while on bail. 14. Now, let me consider whether on the basis of the facts and circumstances of the instant case, the petitioner A-1 is entitled for suspension of sentence and whether the grounds raised by the petitioner satisfies the conditions precedent to lift the embargo on the power of grant of suspension of sentence as contemplated under Section 37 of the Act. 15. As already stated, the prosecution case suffers from a serious infirmity, viz., contradiction in respect of the weight of the contraband said to have been seized as identified by A-1 and the weight of the contraband found after re-weighing the same, at the instance of the accused before the Court. The undisputed fact remains that at the time of seizure A-1 identified two gunny bags containing 30 kgs and 15 kgs respectively totaling to 45 kgs. The undisputed fact remains that at the time of seizure A-1 identified two gunny bags containing 30 kgs and 15 kgs respectively totaling to 45 kgs. But ultimately, after reweighment of the contraband at the instance of the accused, it was found only 21.650 kgs, that there is more than 50% difference in the weight. It is also to be borne in mind that the seizure was effected only in the presence of two official witnesses, viz., P.W.3, Sub Inspector of Police and one Head Constable by name Ravi Kumar and the prosecution has not chosen to examine any independent witnesses and the explanation given by the prosecution that independent witnesses called and they refused to come is, on the face of it, not acceptable. 16. The Hon‘ble Supreme Court has held in Rajesh Jagdamba Avasthi v. State of Goa (supra) as follows: “Discrepancy as regards weight of substance sealed in envelopes on spot and weight of envelopes on spot and weight of envelopes received by laboratory - Envelope which contained 115 grams substance was found containing 82.54 grams - Discrepancy could not be said to be minor or liable to be ignored on ground that discrepancy as regards other envelopes was very small - Seal as well as packets were in custody of same person and thus there was possibility of seized substances being tampered - Panch witnesses examined in the case was stock witness.” 17. The Hon‘ble Apex Court has held further in the very same case that: “The credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW-1 was less than the quantity sealed and sent to him. As he rightly emphasized, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW-1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful”. 18. The above said principle of law laid down by the Hon‘ble Apex Court is squarely applicable to the facts of the instant case. In this case also, the discrepancy is not a small or minor one but the same goes to the very root of the prosecution case. 18. The above said principle of law laid down by the Hon‘ble Apex Court is squarely applicable to the facts of the instant case. In this case also, the discrepancy is not a small or minor one but the same goes to the very root of the prosecution case. At the risk of repetition, it is re-iterated that the prosecution case is that A-1 has identified two bags of Ganja containing 30 kgs and 15 kgs totalling to 45 kgs, but after reweighment it was found only 21.650 kgs. There is absolutely no explanation from the prosecution in respect of this serious infirmity. Further it is to be borne in mind, that the prosecution has not chosen to examine any independent witness to speak about the seizure. The explanation offered for the refusal of the independent witnesses to participate in the proceedings, on the fact of it, raises serious doubt. 19. It is also pertinent to note that the learned Trial Judge also merely brushed aside the above said serious infirmity by merely observing that the weight of contraband relates to A-1 would be lesser after reweighment as the contraband was mixed with mud and sand and further observing that the prosecution proved that A-1 was found in possession of 21.650 kgs Ganja. It is needless to state that the learned trial Judge has not given any valid reason for overlooking the above said serious infirmity. 20. In view of all these aspects, this Court is of the considered view that the credibility of the recovery proceedings is considerably eroded, in view of the above said serious infirmity in the prosecution case and as such this Court is of the considered view that there is a prima facie ground made out on the basis of the materials available on record coupled with the decision of the Hon‘ble Supreme Court, as cited supra, to hold that there are reasonable grounds for believing that the petitioner (A-1) is not guilty of the offence alleged against him. It is also further relevant to note that there is no materials available on record to show that the petitioner (A-1) is a habitual offender or he is likely to commit any offence while on bail. 21. It is also pertinent to note that the Hon‘ble Supreme Court in Dadu @ Tulsidas Etc. v. State of Maharashtra etc. It is also further relevant to note that there is no materials available on record to show that the petitioner (A-1) is a habitual offender or he is likely to commit any offence while on bail. 21. It is also pertinent to note that the Hon‘ble Supreme Court in Dadu @ Tulsidas Etc. v. State of Maharashtra etc. (supra) while holding that Section 32-A in so far it ousts the jurisdiction of the Court to suspend the sentence is unconstitutional and also observed as follows : “ 15. Not providing at least one right of appeal, would negate the due process of law in the matter of dispensation of criminal justice. There is no doubt that the right of appeal is the creature of a statute and when conferred, a substantive right. Providing a right of appeal but totally disarming the Court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Article 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matter indicate no possibility of early hearing of the appeal and its disposal on merits at least in many High Court.” 22. The Hon‘ble Supreme Court also held in an earlier decision in Kashmira Singh v. State of Punjab AIR 1977 SC 2147 : (1977) 4 SCC 291 as follows : “Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under Section 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocence, he would not have to remain in jail for a unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court even compensate him for his incarceration which is found to be unjustified. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal. Would it not be an affront to his sense of justice. Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it. It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence. The very fact that this Court has granted to the appeal special leave to appeal against his conviction shows that, in the opinion of this Court, he has prima facie a good case to consider and in the circumstances it would be highly unjust to detain him in jail and longer during the hearing of the appeal.” 23. This Court also constrained to state that in number of appeals wherein, the persons have been convicted under the NDPS Act have suffered and served the period of sentence awarded against them by the trial Court and ultimately the appeal itself have become in fructuous. It is also needless to state that Justice delayed in Justice denied. In this case, the fact remains that the accused/appellant (A-1) is languishing in the prison for nearly about 4 years and the appeal may not likely to be taken up for final hearing in the near future and as already pointed out the conditions contemplated under Section 37 of the Act also satisfied by the petitioner on the basis of the materials available on record. Therefore, this Court is of the considered view that it is not justified to allow the petitioner to undergo further period of imprisonment pending disposal of the appeal. 24. For the foregoing reasons, the substantive sentence of imprisonment, imposed on the petitioner alone is suspended, pending disposal of the appeal, on the petitioner executing a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) together with two sureties each for a like sum to the satisfaction of the learned Principal Special Judge, Special Court under E.C. and NDPS Act, Chennai, and on further condition that he shall appear before the learned Principal Special Judge, Special Court under E.C. and NDPS Act, Chennai, on the first working day of every English calendar month at 10.30 a.m.