ORDER : Farjand Ali, J. 1. The instant second application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 01.10.2022 passed by the learned Special Judge, NDPS Act Cases Sri Ganganagar in Sessions Case No.47/2019 whereby he was convicted and sentenced to suffer maximum sentence rigorous imprisonment of ten years under Section 8/22 of the NDPS Act and sentenced for ten years alongwith fine of Rs.1,00,000/- and in default of payment of fine to further undergo one year’s RI. 2. His first application for suspension was dismissed as not pressed by this Court vide order dated 10.05.2023 passed in S.B. Criminal Misc. Suspension of Sentence Application No.411/2023. Hence, the instant application for suspension of sentence. 3. It is contended on behalf of the applicant 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. He submitted that the Seizing Officer collected the samples from the spot and sent to the FSL for its examination thus, Section 52-A of the NDPS Act has not been complied with. He is behind the bars more than five and half years. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted. 4. Per contra, learned public prosecutor has vehemently opposed the prayer made on behalf of the accused-applicant for releasing the appellant on application for suspension of sentence. 5. Heard learned counsel for the parties and perused the material available on record as also the impugned judgment. 6. It is emanating from the record that on 15.01.2019, SHO, PS Jawahar Nagar along with his team during patrolling upon suspicion apprehended Surendra Kumar and upon search 16 boxes in which 400 strips containing 4000 tablets of Tramadol Hydrochloride Tablets 100 MG Trio-SR weighing 1 Kg 600 gms were recovered from his possession. During interrogation, he disclosed that the medicinal drug was purchased by him by one Lakhveer Singh and when Lakhveer Singh was interrogated he answered that he purchased the said contraband from Rinku @ Rajesh. During interrogation, he disclosed that the medicinal drug was purchased by him by one Lakhveer Singh and when Lakhveer Singh was interrogated he answered that he purchased the said contraband from Rinku @ Rajesh. Thereafter, by adopting usual mode, investigation was undertaken and the recovered contraband was seized and the samples were marked by the Seizing Officer wehreafter the same were sent to the FSL for its chemical examination. A case under Section 8/22 under the NPDS Act got registered. 7. Admittedly, the inventory though prepared but not in accordance with the mandate provided under Section 52-A of the NDPS Act, neither samples were taken on the same day nor in the presence of a Judicial Magistrate. As per the mandate of law, the samples taken in the presence of the Magistrate, ought to have been sent to the FSL for its chemical examination. Having not done so, the Investigating Agency has committed a grave error and as such, the FSL report would not help the case of the prosecution. 8. It would be worthwhile to mention here that by virtue of powers given under Section 52-A r.w. Section 76 of the NDPS Act, the Central Govt. Department of Finance issued a Gazette Notification dated 23.12.2022 regarding classification, seizing, sealing, storing, taking samples of the contraband etc. called as Narcotic Drugs and Psychotropic Substances (seizure, search, sampling and disposal), Rules 2022 (hereinafter referred as ‘the Rules of 2022’). The said Rule came into force from 23.12.2022. It would be relevant to reproduce certain provisions, which are as under:- 3. Classification of seized material. – (1) The narcotic drugs, psychotropic substances and controlled substances seized under the Act shall be classified based on physical properties and results of the drug detection kit, if any, and shall be weighed separately. (2) If the narcotic drugs, psychotropic substances and controlled substances are found in packages or containers, such packages and containers shall be weighed separately and serially numbered for the purpose of identification. (2) If the narcotic drugs, psychotropic substances and controlled substances are found in packages or containers, such packages and containers shall be weighed separately and serially numbered for the purpose of identification. (3) All narcotic drugs, psychotropic substances and controlled substances found in loose form shall be packed in tamper proof bag or in container, which shall be serially numbered and weighed and the particular of drugs and the date of seizure shall also be mentioned on such bag or container: Provided that bulk quantities of ganja, poppy straw may be packed in gunny bags and sealed in such way that it cannot be tempered with: Provided further that seized concealing material such as trolley bags, backpack and other seized articles shall be sealed separately. (4) The classification, weighing, packaging and numbering referred to in this sub-rule shall be done in the presence of search witnesses (Panchas) and the person from whose possession the drugs and substances was recovered and a mention to this effect shall invariably be made in the panchnama drawn on the spot of seizure. (5) The detailed inventory of the packages, containers, conveyances and other seized articles shall be prepared and attached to the panchnama. 4. …….. 5. …….. 6. ……… 7. …….. 8. Application to Magistrate. – After the seized material under the Act is forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53 of the Act or if it is seized by such an officer himself, he shall prepare an inventory of such material in Form-4 and apply to the Magistrate, at the earliest, under sub-section (2) of section 52A of the Act in Form-5. 9. Samples to be drawn in the presence of Magistrate. – After application to the Magistrate under sub-section (2) of section 52A of the Act is made, the Investigating Officer shall ensure that samples of the seized material are drawn in the presence of the Magistrate and the same is certified by the magistrate in accordance with the provisions of the said-sub-section. 10. …….. 11. …….. 12. …….. 13. Despatch of sample for testing. – (1) The samples after being certified by the Magistrate shall be sent directly to any one of the jurisdictional laboratories of Central Revenue Control Laboratory, Central Forensic Science Laboratory or State Forensic Science Laboratory, as the case may be, for chemical analysis without any delay. 10. …….. 11. …….. 12. …….. 13. Despatch of sample for testing. – (1) The samples after being certified by the Magistrate shall be sent directly to any one of the jurisdictional laboratories of Central Revenue Control Laboratory, Central Forensic Science Laboratory or State Forensic Science Laboratory, as the case may be, for chemical analysis without any delay. (2) The samples of seized drugs or substances shall be despatched to the jurisdictional laboratories under the cover of the Test Memo, which shall be prepared in triplicate, in Form-6. (3) The original and duplicate of the Test Memo shall be sent to the jurisdictional laboratory alongwith the samples and the triplicate shall be retained in the case file of the seizing officer. 9. A combined reading of Rules 3, 8, 9 & 13 of the Rules of 2022 manifesting that after seizure of the contraband, the officer has to move an application to the Magistrate and whereafter, the samples are supposed to be taken in his presence and whereafter the verified samples are supposed to be sent to the Forensic Laboratory for the purpose of detection of any Narcotic Drugs and Psychotropic Substance in the seized article. Ostensibly, no such task has been undertaken in this case and thus, it would be a serious question of law as to whether the FSL report of the samples taken from the spot can be treated as a decisive piece of evidence to substantiate the charge so as to punish him under the NDPS Act. 10. Admittedly, in the case at hand, the samples which were sent to the FSL were not sent after getting verification from the Magistrate as envisaged under the Rules of 2022 aforesaid which is direct contravention of the Rules of 2022. 11. In another judgment titled as Mohammed Khalid and another Vs. The State of Telangana passed by Hon’ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024, wherein it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52-A of NDPS Act, thus, the FSL was considered to be a waste and was not considered worthy of being read in evidence on the basis of this inter alia other aspects, Hon’ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reproduced as under:- “22. The relevant paragraph of the above judgment is reproduced as under:- “22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence.” 12. Hon’ble the Supreme Court has propounded guidelines on the subject of bail in the case of Satender Kumar Antil (supra) and has held as under:- “41. Sub-section (2) has to be read along with Sub-section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436A of the Code which stands on a different footing. 42. …… 43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available Under Section 436A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant. 44. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant. 44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436A of the Code among other factors ought to be considered for a favourable release on bail.” (Emphasis Supplied) If the pleas raised by the defence which have substance, are finally decided in favour of the accused and against the prosecution then certainly the appellant may be acquitted from the charge and in that situation it would not be possible for this Court to return back him the days of long five and half years, which he spent behind the bars. 13. Considering the overall facts and circumstances of the case and looking to the fact that as some of the questions raised by the learned counsel for the appellant deserves to be appreciated again and if the same will be decided in his favour, he may get acquittal; he has served more than five years and looking to voluminous pendency of the cases, there is no likelihood of hearing of the appeal on merits in near future, thus, while refraining from passing any comments on the niceties of the matter 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. 14. 14. Accordingly, the second application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the impugned order of sentence dated 01.10.2022 passed by learned Special Judge, NDPS Act Cases Sri Ganganagar in Sessions Case No.47/2019 against the appellant-applicant Surendra Kumar S/o Laxmandas, 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/- each to the satisfaction of the learned trial Judge for his appearance in this court on 25.10.2024 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 his changed address to the trial Court as well as to the counsel in the High Court. (3) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court. 15. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant was 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 applicant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.