JUDGMENT : 1. The instant application for suspension of sentence has been moved in connection of the judgment impugned dated 18.11.2021 passed by Learned Special judge, NDPS Act cases No.2, Dist. Chittorgarh in Sessions case No. 109/2014 whereby the accused appellant has been convicted for the offences punishable under sections 8/15 of NDPS Act and he has been sentenced with maximum of ten years rigorous imprisonment along with fine of Rs. 1,00,000/-. 2. Learned counsel for the accused-appellant submits that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. The other co-accused person namely Nanalal has already been released on bail by the coordinate bench of this court vide order dated 02.02.2018 and the case of the appellant is on better footing than that of Nanalal. It is the admitted case of the prosecution that neither the petitioner was found present at the crime scene nor any incriminating material or contraband was recovered from his possession. There is not an iota of evidence to show or suggest the complicity of the petitioner in commission of the crime. The alleged recovery has not been made from his exclusive and conscious possession. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted. 3. Per contra, learned Public Prosecutor vehemently opposes the prayer made by representative for the accused-appellant and submits that the matter pertains to recovery of 744 kilograms of poppy husk and the judgment of conviction passed by learned Court below does not warrant any interference. As per the custody certificate submitted by learned Public Prosecutor, the appellant has suffered imprisonment for almost 5 years. The impediment contained under Sections 32-A and 37 of NDPS, Act will be attracted in the factual situation of the present case. 4. Heard and perused the material available on record as well as gone through the statutory provisions applicable in the matter. 5. As per the story of the prosecution, certain quantity of poppy husk was recovered from a tractor-trolley parked at bara (‘an open land for leashing animals’). 4. Heard and perused the material available on record as well as gone through the statutory provisions applicable in the matter. 5. As per the story of the prosecution, certain quantity of poppy husk was recovered from a tractor-trolley parked at bara (‘an open land for leashing animals’). Admittedly when the alleged recovery was made, no one was found present at the spot and the contraband was lying in an abandoned condition. The appellant was not present at the spot. 6. The appellant has been arraigned as an accused in this case on the strength of statement of one constable mahendra who was one of the member of seizing team. He stated that one person who fled away from the spot was the present appellant. He has been examined in trial as PW-18, when his creditability was tested in cross examination, he made several evasive replies regarding identification of the appellant for which this court refrains from making any final observations at this stage as the same may influence the hearing of this appeal, yet tentatively feel it apt to take the same as a serious point of consideration regarding his reliability. 7. In a recent ruling titled Mohd Muslim @ Hussain V. State (NCT OF DELHI) in Special Leave Petition (CRL.) NO(S). 915 of 2023 order dated 28.03.2023, Hon’ble the Supreme Court has discussed Section 37 of the NDPS Act in detail and has allowed the accused in that matter to be released on bail while holding that the impediment contained under Section 37 is not a bar to grant of bail in cases where there is undue delay in conclusion of trial. The paragraph of the afore-said judgment relevant to the present matter is reproduced below: “18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court’s discretion within a very narrow margin. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court’s discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws – be balanced against the public interest. 19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.” 8. This Court is aware of the provisions contained in Section 32- A and Section 37 of the NDPS Act, however, after hearing the submissions made by learned counsel for the accused-appellant regarding that the co-accused has been granted bail thus, on the ground of parity as well as considering the fact that the bara and the tractor-trolley from where recovery of contraband was effected were not owned/possessed by the accused-appellant, particularly considering the other fact that he is behind the bars for around 5 years in total and the hearing of appeal may likely to take further more time, thus considering the prolonged custody period of the appellant, in light of the judgment passed by Hon’ble the Supreme Court in Manohar Lal Ainani Vs. State of Rajasthan & Anr. (Special Leave to Appeal (Crl.) No(s) 2893/21 decided on 15.11.2021) and having regard to the totality of facts and circumstances of the case while refraining from passing any comments on the niceties of the material and the defects of the prosecution as the same may put an adverse effect on hearing of the appeal, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused appellant. 9. Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentence passed by Learned Special judge, NDPS Act cases No.2, Dist. Chittorgarh in Sessions case No. 109/2014 vide judgment dated 18.11.2021 against the appellant-applicant- Jeevan Lal S/o Nana Lal Dhakar shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail provided he executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- to the satisfaction of the learned trial Judge for his appearance in this court on 24.05.2023 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. That he will appear before the trial Court in the month of January of every year till the appeal is decided. 2. That if the applicant changes the place of residence, he will give in writing their changed address to the trial Court as well as to the counsel in the High Court. 3. Similarly, if the sureties change their address(s),they will give in writing their changed address to the trial Court. 10. The learned trial Court shall keep the record of attendance of the accused-applicants in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicants were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicants does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.