Judgment : 1. The petitioner, who has been arrayed as A3 out of four accused including one juvenile accused, has been convicted by the learned Principal Special Judge under EC & NDPS Act, Chennai by the judgment dated 27.12.2010 made in C.C. No. 119 of 2005 for the offence under Sections 8(c) read with 29, 21(c), 28 and 27-A of the , 1985 (hereinafter referred to as ‘Act‘) and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1 lakh for each learned Senior Counsel that the learned Trial Judge by placing reliance on the confession, Exhibit P-40, said to have been recorded from A3, erroneously held offence and in default to undergo rigorous imprisonment for 6 months for each offence, has come forward with this petition, seeking for the relief of suspension of sentence. 2. Mr. V. Gopinath, learned Senior Counsel appearing for the petitioner submitted that the petitioner has been arrayed as A3 out of four accused and one among them is the juvenile accused and the co-accused, namely A1 and A2 have been convicted and sentenced as that of the petitioner/appellant herein, as stated above. It is further submitted that another Juvenile accused was dealt with by the Juvenile Board in respect of the same offences. It is contended by the learned Senior Counsel that the recovery of the contraband namely Heroin was made only from A1, A2 and one Juvenile accused and not from A3, the appellant herein. The learned Senior Counsel further contended that as far as the petitioner/A3 is concerned, the prosecution placed reliance on the confession, Exhibit P-40, said to have been recorded from the petitioner/A3 and the confession under Exhibit P-14 recorded from A1 as per the provision under Section 67 of the Act. It is contended that as far as Exhibit P-40, the confession said to have been recorded from the petitioner/A3 is concerned, the entire statement is exculpatory and as such, it could not be construed to be a confession as contemplated under Section 67 of the Act. The petitioner has also retracted the said confession at the earliest point of time as he has been arrested on 31.1.2005 and retracted on 11.2.2005. The petitioner has also retracted the said confession at the earliest point of time as he has been arrested on 31.1.2005 and retracted on 11.2.2005. The learned Senior Counsel contended that as far as the confession, Exhibit P-14, said to have been recorded from A1 is concerned, it is the confession of the co-accused and it cannot be treated as a substantive piece of evidence. It is pointed out by the learned Senior Counsel that the learned Trial Judge by placing reliance on the confession, Exhibit P-40, said to have been recorded from A3, erroneously held that A3 has stated in the said confession that he has given Rs. 3 lakhs to A1 to fetch the contraband involved in this matter, but the said finding is erroneous as the confession, Exhibit P-40, said to have been recorded from the petitioner/A3 does not contain such statement at all. In support of his contentions, the learned Senior Counsel also placed reliance on the following decisions: (i) U.O.I v. Bal Mukund and Others (2009) 12 SCC 161 : LNIND 2009 SC 737 : (2009) 3 MLJ (Crl) 1067 (ii) Man Singh v. Union of India IV (2006) CCR 41 (SC) (iii) Periya Karuppan v. State rep. by the Inspector of Police, NIB CID, Chennai (2007) 2 MLJ (Crl) 53. 3. Per contra, Mr. N.P. Kumar, learned Special Public Prosecutor appearing for the respondent submitted that the prosecution has adduced enough evidence to implicate the petitioner, who has been arrayed as A3. It is contended that the prosecution placed reliance on the confession of A3 under Exhibit P-40 and as well as the confession of A1 under Exhibit P-14. It is pointed out by the learned Special Public Prosecutor that in the confession of A3 viz., Exhibit P-40, it is stated that he would contact his relatives from Sri Lanka in order to get the amount asked by Al for fetching the contraband in this case. It is contended that Al‘s statement recorded under Section 67 of the Act as per Exhibit P-14 implicates A3 for the receipt of Rs. 3 lakhs from A3 by Al for purchasing the contraband. The learned Special Public Prosecutor further contended that the petitioner is a Sri Lankan citizen and in the event of releasing the petitioner on bail, he would likely to flee from justice and on such an event, it is very difficult to fetch him. 3 lakhs from A3 by Al for purchasing the contraband. The learned Special Public Prosecutor further contended that the petitioner is a Sri Lankan citizen and in the event of releasing the petitioner on bail, he would likely to flee from justice and on such an event, it is very difficult to fetch him. The learned Special Public Prosecutor also placed reliance on the decision of the Hon‘ble Supreme Court in Ratan Kumar Vishwas v. State of Uttar Pradesh and Another AIR 2009 SC 581 : (2009) 1 SCC (Cri) 546 : LNIND 2008 SC 2201 . 4. This Court carefully considered the rival contentions put forward by either side and perused the impugned judgment of conviction. 5. There are four accused in this case including the juvenile accused and A1 and A2 have been convicted and sentenced as that of the petitioner/A3 as stated above. The case of the prosecution is that on 30.1.2005, on the basis of an information, the Intelligence Officer of NCB recovered 3.750 Kgs of Heroin from A1 and A2, who came by Jaipur-Chennai Express at Central Railway Station, Chennai. As far as the petitioner/A3 is concerned, he has been implicated on the basis of the confession of the co-accused/A1 recorded under Exhibit P-14 and on the basis of the confession said to have recorded from him under Exhibit P-40, as per Section 67 of the Act. It is the case of the prosecution that as per A1‘s confession statement under Exhibit P-14, he received Rs. 3 lakhs from A3 for fetching the contraband. 6. Now the crux of the question involved in this matter is to the effect that whether the petitioner/A3 is entitled to the relief of suspension of sentence. In order to consider such question, it is for this Court to analyze and assess the evidence available on record as against the petitioner/A3. 7. Now the crux of the question involved in this matter is to the effect that whether the petitioner/A3 is entitled to the relief of suspension of sentence. In order to consider such question, it is for this Court to analyze and assess the evidence available on record as against the petitioner/A3. 8. 7. Now the crux of the question involved in this matter is to the effect that whether the petitioner/A3 is entitled to the relief of suspension of sentence. In order to consider such question, it is for this Court to analyze and assess the evidence available on record as against the petitioner/A3. 8. Before proceeding to consider the points raised for seeking the relief of suspension of sentence, it is relevant to deal with the position of law in respect of the suspension of sentence pending appeal against conviction under the Act. Initially under Section 32-A 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 , no sentence awarded under this Act (other than Section 27 ) shall be suspended or remitted or commuted.” 9. In an earlier decision in Maktool Singh v. State of Punjab AIR 1999 SC 1131 : (1999) SCC (Cr) 417, 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. AIR 2000 SC 3203 : (2000) SCC (Cr) 1528 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 32-A in so far it ousts the jurisdiction of the Court to suspend the sentence awarded to a convict under the Act is un al. We are, therefore, of the opinion that Allahabad High Court in Ram Charan‘s case (supra) has correctly interpreted the law relating to the al validity of the Section and the judgment of Gujarat High Court in Ishwar singh M. Rajput‘s case cannot be held to be good law. 23. We are, therefore, of the opinion that Allahabad High Court in Ram Charan‘s case (supra) has correctly interpreted the law relating to the al validity of the Section and the judgment of Gujarat High Court in Ishwar singh M. Rajput‘s case cannot be held to be good law. 23. Despite holding that Section 32-A is un Constitutional to the extent it affects the functioning of the criminal Courts in the country, we are not declaring the whole of the section as un Constitutional 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 . The Declaration of Section 32-A to be un al, 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.” 10. In the above said decision, the Hon‘ble Supreme Court ultimately held as follows: “24.Holding Section 32-A 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 of 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 satisfaction of the conditions contemplated under Section 37 of the Act. 11. 11. Section 37 of the Act reads hereunder: (1) Notwithstanding anything contained in the, - (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 of Section 24 or Section 27-A and also for Oneness 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 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. 12. By keeping the above said principles laid down by the Hon‘ble Apex Court in the decisions cited supra and in the light of the twin conditions contemplated under Section 37 of the Act, let me now consider the question whether the petitioner/A3 is entitled to the relief of suspension of sentence by analyzing and assessing the materials available on record against the petitioner. 13. At the outset it to be stated that in view of the twin conditions contemplated under Section 37 of the Act, this Court has no other alternative except to go into the merits of the case in respect of the admissible evidence available on record against the petitioner/A3 to consider whether the said twin conditions have been satisfied. As far as the case on hand is concerned, as already pointed out, the prosecution mainly placed reliance on the confession of the co-accused/A1 recorded under Exhibit P-14 and the confession of the petitioner/A3 recorded under Exhibit P-40 as per the provision under Section 67 of the Act for implicating the petitioner/A3 in this case. 14. As far as the case on hand is concerned, as already pointed out, the prosecution mainly placed reliance on the confession of the co-accused/A1 recorded under Exhibit P-14 and the confession of the petitioner/A3 recorded under Exhibit P-40 as per the provision under Section 67 of the Act for implicating the petitioner/A3 in this case. 14. In respect of the first piece of evidence namely the confession of the co-accused/A1 recorded under Exhibit P-14, it is highlighted by the learned Senior Counsel that the same is not a substantive piece of evidence. At this juncture, it is relevant to refer the decision of the Hon‘ble Apex Court in Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate and Another (2007) 3 SCC (Cr) 531 : LNIND 2007 SC 1176 : (2008) 1 MLJ (Crl) 577, wherein the Hon‘ble Apex Court has held hereunder at p. 583 of MLJ (Crl) “15..... It is now a well-settled principle of law that a confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deductible therefrom....” 15. In yet another decision in Ravindran Alias John v. Superintendent of Customs AIR 2007 SC 2040 : (2007) 3 SCC (Cr) 189 : (2007) 6 SCC 410 : LNIND 2007 SC 652 : (2007) 2 MLJ (Crl) 510 , the Hon‘ble Apex Court has held that, “19. ... The confessional statement of a co-accused could not be used as substantive evidence against the co-accused.” The principles laid down by the Hon‘ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case as the prosecution sought to place reliance on the confession of A1 under Exhibit P-14 and the same could not be used as a substantive evidence against A3 and it can only lend assurance, if any other admissible legal evidence available on record. 16. The second piece of material relied by the prosecution is the confession, Exhibit P-40, said to have been recorded from the petitioner/A3. The perusal of Exhibit P-40 would make it manifestly clear that the entire statement is exculpatory in nature and as such, it could not be construed to be a confession. 16. The second piece of material relied by the prosecution is the confession, Exhibit P-40, said to have been recorded from the petitioner/A3. The perusal of Exhibit P-40 would make it manifestly clear that the entire statement is exculpatory in nature and as such, it could not be construed to be a confession. It is seen from the perusal of the impugned judgment of conviction that the learned Trial Judge has given a finding to the effect that the petitioner/A3 has stated in his statement, Exhibit P-40 that he has given Rs. 3 lakhs to Al to fetch the contraband in this case, but the perusal of Exhibit P40 does not disclose such statement made by A3 and as such, the finding of the learned Trial Judge is contrary to the contents and statement said to have been recorded from A3 under Exhibit P-40. 17. The yet another important factor to be borne in mind by this Court is that the prosecution has not produced any material to show that the petitioner/A3 is an habitual offender in respect of the narcotic drugs, as the petitioner has not been implicated in any other case of similar nature or suffered any previous conviction. In view of the same, this Court can safely come to the conclusion that the petitioner/A3 is not likely to commit any offence in the event of his release on bail. 18. At this juncture, it is also relevant 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 un Constitutional and also observed as follows: “15. Not providing atleast 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. 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 atleast in many High Courts.” 19. This Court also cannot lost sight to the fact that the petitioner is undergoing the sentence of imprisonment for the last more than six years. At this juncture, it is also relevant to refer the decision of the Hon‘ble Apex Court in Man Singh v. Union of India (supra), wherein the Hon‘ble Apex Court has held hereunder: “3. The appellant has been in jail since 1.3.1997 and has already undergone more than seven years of imprisonment. It is stated by the learned Counsel for the appellant that there is no likelihood of the appeal being heard in the near future. Reliance is placed on the decision of this Court in Dadu v. State of Maharashtra (supra). The learned Counsel for the appellants states that the appellant is prepared to deposit the amount of fine.” It is seen that the appeal is related only to the year 2011 and as such, it is not likely to be taken up for final hearing in the near future. Under such circumstance, this Court is of the considered view that the petitioner is entitled to the relief of suspension of sentence. 20. In view of the aforesaid reasons, this Court is inclined to grant the relief of grant of suspension of sentence to the petitioner on the following conditions: (a) The petitioner shall execute a bond for a sum of Rs. 25,000/- (Rupees Twenty Five Thousand Only) with two sureties for a like sum, of which one surety is that of a Government servant and another surety shall furnish immovable property security to the value of Rs. 5,00,000/- (Rupees Five Lakhs Only) to the satisfaction of the learned Principal Special Judge under EC & NDPS Act, Chennai; (b) The petitioner shall furnish cash security to the tune of Rs. 5,00,000/- (Rupees Five Lakhs Only) to the satisfaction of the learned Principal Special Judge under EC & NDPS Act, Chennai; (b) The petitioner shall furnish cash security to the tune of Rs. 50,000/- (Rupees Fifty Thousand Only) to the satisfaction of the learned Principal Special Judge under EC & NDPS Act, Chennai; (c) If the petitioner is holding the passport, the same shall be deposited before the trial Court namely the learned Principal Special Judge under EC & NDPS Act, Chennai; (d) The petitioner shall report before the trial Court every month on the first working day at 10.00 a.m, pending disposal of the appeal; 21. It is made clear that the observations made by this Court shall have no bearing whatsoever on the merits of the case at the time of final disposal.