JUDGMENT 1. Heard learned counsel for the parties. 2. The criminal miscellaneous application has been filed by Shiv Kumar (applicant-appellant) seeking suspension of his sentence of imprisonment during pendency of the appeal. 3. Police party headed by SI Mohinder Singh (PW-7), HC Rajinder Singh (PW-9) and others were on patrol duty and was present near the bus stand Uchana on 06.07.2012. At that time two persons (i.e. Rajesh - accused No. 1 and Shiv Kumar – applicant/ appellant) were seen coming from Uchana Town. On seeing the police party, they tried to turn their motorcycle but its engine stopped. On the suspicion that was raised Rajesh (accused No.1), who was driving the motorcycle and Shiv Kumar (applicant-appellant) who was riding pillion were apprehended. A notice under Section 50 of the NDPS Act, was served on them to the effect that some narcotic substance was suspected in the boot of the motorcycle, which was to be searched and if they so desired they could be taken before a Gazetted Officer or a Magistrate for conducting the search or they could be called at the spot. The persons who had been apprehended stated that they wanted to the search to be conducted before a Gazetted Officer. SI Mohinder Singh informed Amrik Singh DSP, Jind (PW-6) requesting him to come at the spot with his staff. On the directions of DSP Amrik Singh, after obtaining the key from driver Rajesh (accused No. 1), the boot of the motorcycle was searched. A polythene containing charas was recovered. It was 5 kgs in weight. Samples of 50 grams each were separated. The case property along with the motorcycle were taken in possession. The other formalities were completed and FIR Ex.PA/1 was registered at Police Station Uchana. 4. Shiv Kumar (applicant-appellant) along with his co-convict Rajesh (accused No. 1) has been convicted for the offence under Section 20 of the NDPS Act. He has been sentenced to undergo rigorous imprisonment for 12 years; besides, pay a fine of Rs. 1,50,000/- and in default thereof undergo further rigorous imprisonment for two years. 5. The case of the applicant-appellant/Shiv Kumar is that nothing was recovered from him at the time of the incident and he was simply riding pillion. Neither the motorcycle belonged to him nor was he aware of anything being carried in the boot of the motorcycle. 1,50,000/- and in default thereof undergo further rigorous imprisonment for two years. 5. The case of the applicant-appellant/Shiv Kumar is that nothing was recovered from him at the time of the incident and he was simply riding pillion. Neither the motorcycle belonged to him nor was he aware of anything being carried in the boot of the motorcycle. He was going to village Chatter to the house of his sister for some urgent work and due to non-availability of any vehicle, he had taken a lift as he had to reach village Chatter for some urgent work. Police had falsely implicated him in the case. 6. Learned counsel for the applicant-appellant submits that the prosecution has not been able to prove any link between Shiv Kumar (applicant-appellant) and his co-convict (Rajesh). A reference has been made to the deposition of SI Mohinder Singh (PW-7) who in his cross-examination inter alia stated that nothing incriminating came in his investigation by which it could be established that both the accused were known to each other and they were having any prior communication. There was approximately 10-12 years age gap between the accused. Both the accused were not from the same village nor from same caste. 7. Learned counsel for the State has submitted that no cross-examination was conducted against the prosecution witnesses that Shiv Kumar (applicant-appellant) had taken a lift only on the motorcycle and he had disclosed this fact to the Investigating Officer, DSP or the SHO. It is submitted that the failure to put the cross-examination on the aspect of taking a lift only, it is to be presumed that the account given by the witness had been accepted by the applicant-appellant i.e. he had links with his co-convict Rajesh (accused No. 1). 8. After giving our thoughtful consideration to the matter, it is to be noticed that the question whether Shiv Kumar (applicant-appellant) who has riding pillion was in conscious possession of contraband that was recovered from the boot of the motorcycle would require consideration at the time of final hearing. 9. According to affidavit of Shri Sewa Singh, Deputy Superintendent of Prison, District Prison, Jind, Shiv Kumar (applicant-appellant) has undergone actual imprisonment of three years, five months and twenty days as on 28.09.2015. There is no other case pending against him. 10. 9. According to affidavit of Shri Sewa Singh, Deputy Superintendent of Prison, District Prison, Jind, Shiv Kumar (applicant-appellant) has undergone actual imprisonment of three years, five months and twenty days as on 28.09.2015. There is no other case pending against him. 10. In the facts and circumstances, it would be just and expedient to suspend the sentence of imprisonment of Shiv Kumar (applicant-appellant) during pendency of the appeal. 11. Accordingly, the criminal miscellaneous application is allowed and the sentence of imprisonment of Shiv Kumar (applicant-appellant) shall, during pendency of the appeal remain suspended subject to his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Jind. ---------0.B.S.0------------