ORDER : Farjand Ali, J. 1. The instant application for suspension of sentence has been moved on behalf of the applicant-appellant in the matter of judgment dated 09.01.2023 passed by the learned Special Judge, NDPS Act Cases, Bhilwara in Sessions Case No.40/2019 whereby he was convicted and sentenced to suffer maximum rigorous imprisonment of 10 years under Section 8/25 of NDPS Act along with a fine of Rs.1,00,000/- and in default of payment of fine further undergo six months rigorous imprisonment. 2. It is contended on behalf of the applicant-appellant 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. It is further submitted that hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted. It is also submitted that the sentence of the co-accused Mahendra Rebari has already been suspended by this Court vide order dated 19.03.2024 passed in S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No.153/2023. 3. Per contra, learned Public Prosecutor has vehemently opposed the prayer made on behalf of the accused applicant-appellant for releasing him on application for suspension of sentence. He is not in a position to dispute the fact that sentence of the above named co-accused has already been suspended. 4. Heard learned counsel for the parties and perused the material available on record. 5. This Court vide a detail order dated 19.03.2024 passed in S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No.153/2023 has suspended the sentence of co-accused Mahendra Regbari. The said order is being reproduced hereunder :- “1. The instant application for suspension of sentence have been moved on behalf of the applicant in the matter of judgment dated 09.01.2023 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No.40/2019 whereby he was convicted under Section 8/15 of the NDPS Act and sentenced to suffer 10 years rigorous imprisonment along with a fine of Rs.1,00,000/- and in default to further undergo six month’s rigorous imprisonment. 2. 2. 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. As the accused-applicant is behind the bars since 18.03.2019. He placed reliance on the Petition(s) for Special Leave to Appeal (Crl.) No(s) 2893/21 titled Manohar Lal Ainani Vs. State of Rajasthan & Anr., wherein it was held vide order dated 15. 11.2021 that looking to the prolonged custody period of the petitioner, bail shall be granted to him in that matter. In another landmark judgment of Satender Kumar Antil vs. Central Bureau of Investigation and Ors. reported in AIR 2022 SC 3386 , the aforesaid aspect has been reiterated. Lastly, he submits that hearing of the appeal would likely to take time, thus, their sentence may be suspended during the pendency of the appeal. 3. 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. 4. I have heard learned counsel for the parties and perused the material available on record. 5. Perusal of the record revealing the facts of the instant case are that on 18.03.2019, the SHO Bhura Ram with his team intercepted an Alto Car which was allegedly being driven by the applicant Mahendra and the applicant Chaina Ram was not present at the spot, he has been made an accused on the strength of statement of co-accused. Upon making search, 218 Kg poppy husk came to be recovered. Samples were taken and sent to the FSL for its chemical examination. Now, more than five years have elapsed. The appeal has been admitted for further consideration and re-appreciation of the evidence but the same could not have been done because of the dearth of time and voluminous pendency. Even there seems no hope of hearing of the appeal on merits in a near future, in these circumstances, in view of the guidelines propounded by Hon’ble the Supreme Court in the case of Satender Kumar Antil (supra) on the subject of bail on the ground of long period of incarceration, the sentence of the present applicant deserves to be suspended. The relevant paragraphs of the afore-mentioned judgment are as follows:- “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 atrial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436 A 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 436 A 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. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436 A of the Code among other factor sought to be considered for a favourable release on bail.” 6. Besides the above, it is observed that there is total non-compliance of Section 52-A of the NDPS Act/ the samples which were collected by the police officer from the spot at the time of recovery were sent to the FSL for detection of contraband. The FSL report dated 18.09.2019 reflecting that samples A-1 to A-11 were taken at the spot and the same were sent to the FSL for chemical examination. Thus, it is clear that the samples were not taken in the presence of Magistrate and thus, as per law, no such samples were sent to the FSL. 7. The FSL report dated 18.09.2019 reflecting that samples A-1 to A-11 were taken at the spot and the same were sent to the FSL for chemical examination. Thus, it is clear that the samples were not taken in the presence of Magistrate and thus, as per law, no such samples were sent to the FSL. 7. The appellant is behind the bars for more than 5 years. The appeal has already been admitted by this Court. Thus, considering the submissions made with regard to the long incarceration as well as the grounds raised in the memo of appeal regarding sustainability of judgment of conviction as well as feeling that the embargo contained under Sections 32 and 37 of the NDPS Act would not come in the way of suspending the sentence of the appellants. In a recent 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, 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 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. 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.” If the legal issues mentioned above are decided in favour of the appellant then he may succeed in appeal and may get acquittal but the same is not going to be done in near future, thus, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused-appellant. 8. 8. Accordingly, the 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 09.01.2023 passed by learned Special Judge, NDPS Act Cases, Bhilwara in Sessions Case No.40/2019 against the appellant-applicant Mahendra Rebari S/o Ramchandra Rebari 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 their appearance in this court on 25. 04.2024 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 change 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. 9. 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-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.” 6. Considering the submissions of learned counsel for the parties and looking to the totality of facts and circumstances of the case, more particularly the facts that the sentence of the co-accused has already been suspended by this Court vide order dated 19.03.2024 passed in S.B. Criminal Misc. Considering the submissions of learned counsel for the parties and looking to the totality of facts and circumstances of the case, more particularly the facts that the sentence of the co-accused has already been suspended by this Court vide order dated 19.03.2024 passed in S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No.153/2023 and hearing of appeal is likely to take further more time and considering the overall submissions 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 applicant-appellant. 7. 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 Cases, Bhilwara who passed the impugned order 09.01.2023 in Sessions Case No.40/2019 against the applicant-appellant - Chena Ram Jat S/o Shri Kana Ram Jat 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 03.06.2024 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- (i) That he will appear before the trial Court in the month of January of every year till the appeal is decided. (ii) That if the applicant-appellant 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. (iii) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court. 8. The learned trial Court shall keep the record of attendance of the accused applicant-appellant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused applicant-appellant 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. Such file be registered as Criminal Misc. Case related to original case in which the accused applicant-appellant 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-appellant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.