ORDER : 1. Present application for suspension of sentence in present appeal, filed against order of conviction and sentence dated 18.08.2018 in Sessions Case No. 25/2017, passed by learned Special Judge (NDPS Cases), Dausa is filed on behalf of appellant. 2. Learned counsel for appellants submitted that the trial Court has grossly erred in convicting and sentencing the accused appellants. He submitted that the seizure memo clearly indicated that in each gunny bag, 10-20 small packets were there and officer who was conducting seizure had not collected samples from all bags. He further submitted that the mandatory provisions of NDPS Act were again violated and no proceedings took place at the spot which was admitted by the witnesses before the learned trial court. He further submitted that the information of transportation of illicit contraband goods was received well in advance but no efforts were made to obtain search and seizure warrant from the Magistrate. Moreover, no chance was offered to present appellants for their search before any Gazetted officer or Magistrate. He for that submitted that accused have already undergone sentence for more than 6 years and maximum punishment in the matter is 10 years of rigorous imprisonment and they are entitled to be released on bail during the pendency of present appeal. While referring judgments of Hon’ble Supreme court in the case of Ramnik Singh Vs. Intelligence Officer (2013) SCC Online 1276 and Mayuresh Nandkumar Purohit Vs. Kaushik Manna 2018 CLR (SC) 251 he submitted that the Hon'ble Supreme Court while considering the fact that when maximum punishment awarded was 10 years and more than 50 percent was already undergone by the accused persons, they were released on bail after allowing the application for suspension of sentence. While referring the judgment of Co-ordinate Bench of this Hon'ble Court in case of Jagdish Prasad Sharma versus Union of India (S.B. Criminal Misc. Bail Application No. 164/2022 in S.B. Criminal Appeal No. 246/2022) he submitted that it is not mandatory for the Court to consider the embargo under Sections 37 and 32A of NDPS Act. He further relied upon the judgment passed by Hon'ble Supreme Court in the case of Boota Singh & Ors. Vs. State of Haryana (2021) 0 Supreme (SC) 203 and submitted that in case of non-compliance of provisions of NDPS Act, appellants are entitled for release on bail. He further relied upon the judgment passed by Hon'ble Supreme Court in the case of Boota Singh & Ors. Vs. State of Haryana (2021) 0 Supreme (SC) 203 and submitted that in case of non-compliance of provisions of NDPS Act, appellants are entitled for release on bail. He further referred the judgment of Hon'ble Supreme Court in case of Mossa Koya K.P. Vs. State (NCT of Delhi) 2021 0 Supreme(SC) 945 wherein application for suspension of sentence under Section 389 Cr.P.C. was allowed. Similarly, in SLP (criminal) No.10515/2019 titled as Sabir Vs. State of Madhya Pradesh and Anr. order dated 10.02.2023 passed by Hon'ble Apex Court was also referred wherein statement under Section 67 of NDPS Act was not relied in light of Tofan Singh Vs. State of Tamil Nadu (2021) 4 SSC 1. Learned counsel for appellant further relied upon judgment passed by Hon'ble Supreme Court in the case of Union of India Vs. Leen Martrin & Anr. 2018 0 Supreme (SC) 188 again on the point of statement under Section 67 of NDPS Act. He further relied upon the judgment in the cases of Netram Vs. State of Rajasthan 2013 0 Supreme(Raj) 1948, Vardi Chand @ Pappu Vs. State of Rajasthan 2009 0 Supreme (Raj.) 2380, Navla Vs. State of Rajasthan 2005 (1) RCC 523, Bhanwar Lal @ Bhura Vs. State of Rajasthan (S.B. Criminal Misc. Suspension of Sentence No. 797/2022 in Criminal Appeal No. 1186/2022)and submitted that more than 50 percent of the sentence awarded is already undergone and since disposal of appeal will take more time, appellants be released on bail. 3. Aforesaid contentions are opposed by learned Special Public Prosecutor while referring the judgments of Hon'ble Supreme Court in case of Union of India Vs. Rattan Malik (2009) 2 SCC 624 , State of Kerala Vs. Rajesh (Criminal Appeal No. 154157 of 2020) and Dadu @ Tulsidas Vs. State of Maharashtra (Writ Petition (CRL.) 169/1999) submitted that without complying the provisions of Section 37 NDPS Act, no order of application for suspension of sentence can be passed. He further submitted that herein the recovery was effected from a truck upon receiving concrete information wherefore entire conviction is based on recovery. State of Maharashtra (Writ Petition (CRL.) 169/1999) submitted that without complying the provisions of Section 37 NDPS Act, no order of application for suspension of sentence can be passed. He further submitted that herein the recovery was effected from a truck upon receiving concrete information wherefore entire conviction is based on recovery. He submitted that even if the discrepancies in the statement of independent witnesses are assumed, the Court can consider the statement of other public servants who were there on the spot and there were no discrepancies while deposing before learned trial Court. He submitted that the mandatory provisions as provided under NDPS Act were followed and the constitutional validity of which were upheld by the Hon'ble Supreme Court. While referring judgment of Division Bench of this Court in case of Daulat Singh @ Gatu Vs. State of Rajasthan 2014 (2) Cr.L.R. (Raj.) 738 which was further referred in S.B. Criminal Misc. Suspension of Sentence Application No. 889/2018 in criminal appeal No. 1466/20418, he submitted that Hon’ble Court has to follow the provision of Section 37 of NDPS Act before passing any order. 4. Heard learned counsels for both the appellants and learned Special Public Prosecutor. Perused the material available on record and also perused the judgments as cited before this Court by learned counsel for both the parties. 5. The instant case is an application for suspension of sentence which was filed in year 2018 and since then no efforts were made on the part of appellant for disposal of the application. When the Court perused the original appeal which had been listed since 31.10.018, time is sought by appellant on most of the occasions and the matter was ultimately adjourned. When the matter was before this Bench on 08.03.2023, close relatives of appellant were present and they had prayed for early hearing of appeal due to which this Court had directed the matter to be listed on priority basis but unfortunately instead of argument on merits, learned counsel pressed hard for SOSA. It took almost 5 years to admit the appeal and now the question is whether learned counsel for appellants are ready for arguments on appeal. When specific questions were asked on merits, the learned counsel appearing on behalf of both the appellants have categorically made a statement that they are pressing only and only application for suspension of sentence. It took almost 5 years to admit the appeal and now the question is whether learned counsel for appellants are ready for arguments on appeal. When specific questions were asked on merits, the learned counsel appearing on behalf of both the appellants have categorically made a statement that they are pressing only and only application for suspension of sentence. Here in this case, when appellants themselves are responsible for delay, so how can he seek equity. 6. The purpose of Section 389(1) Cr.P.C. was considered by Hon’ble Supreme Court in several matters including in the case of Atul Tripathi Vs. State of UP reported in AIR 2014 SC 3062 wherein while magnifying the requirements of suspension of sentence, the Court laid down the parameters for suspension of sentence and observed that:- "a. The appellate court, if inclined to consider the release of a convict sentenced to punishment for death or imprisonment for life or for a period of ten years or more, shall first give an opportunity to the public prosecutor to show cause in writing against such release. b. On such opportunity being given, the State is required to file its objections, if any, in writing. c. In case the public prosecutor does not file the objections in writing, the appellate court shall, in its order, specify that no objection had been filed despite the opportunity granted by the court." 7. Prior to aforesaid, learned Apex Court in case of Kishori Lal Vs. Rupa AIR 2005 SC 1481 has laid down that appellate Court is under an obligation to objectively assess the case so as to warrant suspension of sentence. The law over the point is quite clear and this Court has to opine and give reasons for allowing the application for suspension of sentence wherein the sentence is 10 years or more. 8. When we look at the present matter, it is clearly indicated that on 28.12.2016 around 8.30 P.M. a truck bearing No. RJ-29GA-2218 was stopped at Basadi cross-road wherein seven gunny bags of cannabis were found and total weight of contraband was 130Kg which is a commercial quantity. It was also found that truck was driven by Mahesh Kumar and was accompanied by Arun Kumar who are appellants before the Court. It was also found that truck was driven by Mahesh Kumar and was accompanied by Arun Kumar who are appellants before the Court. The evidence so led before learned trial Court has clearly indicated that both the appellants were found in the truck at the time of interception and in their presence, entire proceeding of search and seizure was conducted by department officials, thus the fact is also based on direct evidence adduced by the prosecution before learned trial Court. 9. The appellants were not allowed the benefit of bail during trial so during entire trial, they remained in custody and after conviction, they preferred this appeal and till now they are in custody and were found guilty under Section 8/20 of NDPS Act and sentenced individually with rigorous imprisonment of 10 years with fine of Rs.1,00,000/-each. One of the orders cited by learned counsel for appellants indicated that brother of appellant Arun Kumar was also found guilty in Sessions Case No. 1/2021 passed by Special Judge (NDPS Act Cases), Sikrai, District Dausa and the order of conviction and sentence dated 17.12.2022 was suspended in S.B. Criminal Misc. Application for Suspension of Sentence No. 135/2022 in Criminal Appeal No. 201/2022. It indicated that brother of appellant, Arun Kumar S/o Jaleshwar Pandey whose name is Tantan Pandey s/o Jaleshwar Pandey was also convicted under NDPS Act. Though, this has got no relevance but it has a lot to communicate. Here in this case, the recovery of contraband article is of commercial quantity and it is mandatory on the part of this Court to observe conditions and limitations as prescribed under the law. 10. In the case of Ramnik Singh Vs. Intelligence Officer (supra) and Mayuresh Nandkumar Purohit Vs. Kaushik Manna (supra), Hon’ble Supreme Court has allowed suspension of sentence on the ground that hearing of appeal will take lot of time but herein we have offered to hear the appeal on merits but same was not argued on merits. Thus, these judgments are not applicable in present case. 11. Similarly in the case of Boota Singh & Ors. Vs. State of Haryana (supra), Hon’ble Apex Court while deciding the appeal on merits, observed non-compliance which is not in the case at this interim stage. This Court could not observe non-compliance of law which will impact the final outcome of appeal. 12. Similarly in the case of Union of India Vs. Vs. State of Haryana (supra), Hon’ble Apex Court while deciding the appeal on merits, observed non-compliance which is not in the case at this interim stage. This Court could not observe non-compliance of law which will impact the final outcome of appeal. 12. Similarly in the case of Union of India Vs. Leen Martrin & Anr. (supra), reference was made regarding statement under Section 67 of NDPS Act which is again the matter on merits but this case is of direct evidence as both appellants were present in the truck carrying contraband goods, hence this judgement is also not applicable in this case. 13. As regard to Mossa Koya K.P. Vs. State (NCT of Delhi) (supra) is concerned, the appellant before Hon’ble Supreme Court was convicted under Section 29 of NDPS Act whereas other who were charged directly were in fact acquitted but here in this case, both the appellants are charged directly with the possession and were found in conscious possession of contraband goods, hence this judgment is not applicable in this case. 14. Again in the case of Sabir Vs. State of Madhya Pradesh and Anr.(supra), Hon'ble Apex Court while referring Tofan Singh Vs. State of Tamil Nadu (supra) held that statement under Section 67 cannot be relied upon but herein, we are not considering to rely upon statement under Section 67 of NDPS Act, thus this judgment is also not applicable in this case. 15. As regard to other judgment of this Court is concerned, the matter has already been considered by Division Bench of this Court in case of Daulat Singh @ Gatu Vs. State of Rajasthan (supra), and on that basis, application for suspension of sentence was rejected in the case of Avantika Vs. State of Rajasthan (supra) by Co-ordinate Bench of this Court. 16. Thus, none of the aforesaid judgements are applicable of this Court. 17. Herein, I do not find any reason to release appellants on bail after allowing application for suspension of sentence on the ground that they have already undergone six years in custody. 18. Present matter is of contraband article “Cannabis” which is commonly used a menace of drugs addiction. Hon'ble Apex Court while dealing with constitutional validity of Section 32A of NDPS Act in case of Dadu @ Tulsidas Vs. 18. Present matter is of contraband article “Cannabis” which is commonly used a menace of drugs addiction. Hon'ble Apex Court while dealing with constitutional validity of Section 32A of NDPS Act in case of Dadu @ Tulsidas Vs. State of Maharashtra (supra) has clearly indicated that to check menace of drugs flooding the market, the Parliament has provided that persons accused of offences under NDPS Act should not be released on bail during trial unless the mandatory conditions under Section 37 of NDPS Act are satisfied. Considering the entire set of evidence as being laid down before learned trial Court, this Court finds that mandatory provisions are not followed in the instant case. There is no personal search as the entire contraband and was found in seven gunny bags. Similarly, there was no mandate under the law to obtain search warrant from any Court or Magistrate. No one can doubt either of public servants unless there are reasons on the ground to doubt the bonafides of search and seizure officers. Herein, no suggestion or statement was made with respect to the fact that from where these individuals had purchased the 130Kg cannabis and transported. 19. Here in this case, none of the appellants have made a statement before the Seizing Officer that they were peddlers only and actually a driver or cleaner. They were carrying the goods and if no suggestion is made then obviously direct responsibility lies on appellants and if they fail to discharge the burden of proof as provided under Section 106 of Indian Evidence Act then it cannot be pleaded by appellants that they are drivers or cleaner only. 20. In the view of aforesaid, this Court finds no reason to interfere. Hence, this application is liable to be dismissed. 21. Accordingly, the application for suspension of sentence is dismissed. Misc. application stands disposed of.