ORDER : (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. Rule. Learned APP Mr.Hardik Mehta, waives service of notice of rule for the respondent – State and learned advocate Mr.Ankit Shah waives service of notice of rule for the respondent No.2 – Narcotics Control Bureau. 2. By way of this application under Section 430(1) of BNSS, 2023, the applicant-original accused no.13 – Saud Aslam Patel S/o. Aslam Hassan Miya Patel, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 8(c), 21(c), 23(c), 25 and 29 of the NDPS Act. 3. The present application for suspension of sentence arise from the judgment dated 29.01.2024 and order of sentence passed in Special NDPS Case No. 1 of 2017, whereby the applicant herein was convicted and sentenced as under: Section Imprisonment Fine In default S.8(c), 21(c) of NDPS Act RI for 10 yrs Rs.100000 SI for 2 years and months 4. Facts and circumstances giving rise to file appeal as well as present application are as follows: 4.1 The applicant-accused A-13 along with 12 persons had been tried for the offences mentioned hereinabove. The learned trial court after appreciation of the evidence and hearing the parties, convicted the accused and sentenced them as per the aforesaid schedule. The case of the prosecution unfolded during the trial is that, the Indian Coast Guard (ICG) received intelligence input with regard to suspicious activities of a ship MV – Hennry. Therefore, the ICG took their own ship and intercepted the vessel on 29.07.2017 which was having a flag of Panama. The Master of the ship was A-1 Sujit Tiwary and there were seven other crew members (A-2 to A-8), all Indian Nationals. The officials of the ICG found the narcotic substance alleged to have been hidden in two cavities of the vessel, modified in two tanks on both the sides. The quantity of the narcotics approximately 1445 kilogram (101.8 kilogram heroine and 427 kilogram morphene) wrapped in the 1526 packets. The ICG informed the Narcotics Control Bureau, Ahmedabad (NCB). The team of NCB officials came to Porbandar Jetti – Gujarat where the vessel was brought by the ICG. The officials of the ICG handed over a letter for taking possession of the items listed in the inventory to the NCB. The ICG informed the Narcotics Control Bureau, Ahmedabad (NCB). The team of NCB officials came to Porbandar Jetti – Gujarat where the vessel was brought by the ICG. The officials of the ICG handed over a letter for taking possession of the items listed in the inventory to the NCB. Thereafter, the Intelligence Officer, 8 crew members and witnesses along with narcotic substance came to Old S.P. Office, Porbandar for further proceedings. The NCB after following the proper procedure as envisaged under the NDPS Act, seized and recovered the contraband and samples were also drawn from 52 packets (A-1 to AZ-2). The eight persons who were on crew, had been detained and arrested and their statements under Section 67 of the NDPS Act had also been recorded. During the investigation, it revealed that, the A-1 was working for an Iranian National Saiyedali Moniri and it was Saiyedali who purchased the heroin and parked the same in the cavities made in the ship and had offered huge amount to the Master – A-1 and crew members for illegal transportation. The contraband was supposed to be travelled to Egypt, but due to some incident, the Captain – A1 was afraid to travel Egypt and ship was diverted towards India. In such circumstances, the conspiracy to import prohibited narcotics into India allegedly hatched in connivance with the Iranian and Pakistani citizens. The contraband brought to India and it was intended to brought at Porbandar for unloading and sell of the contraband. As a part of conspiracy, the A1 - Sujit Tiwary, in order to upload and sell, he contacted and talked with A-10 – Vishalkumar Yadav and A-11 – Irfan Shaikh and made conversation with each other about the uploading and sell of the contraband. A-1 – Captain was in contact with his brother -present applicant A - 9 Sujit Tiwary and was informed about the consignment, the deal amount which supposed to be received by A-1 and others and was further directed to keep in touch with the accused for unloading and other things. The accused no.A-12 and A-13 were directed to explore the possibility of sell and safe unloading of the contraband at the shore of Gujarat. In such circumstances, the accused no.9 to 13 were detained and their statements under Section 67 had been recorded by the NCB and thereafter, they were arrested. The accused no.A-12 and A-13 were directed to explore the possibility of sell and safe unloading of the contraband at the shore of Gujarat. In such circumstances, the accused no.9 to 13 were detained and their statements under Section 67 had been recorded by the NCB and thereafter, they were arrested. The electronic gadgets like laptops, mobile phones allegedly used by the accused in commission of the offence were recovered and seized by the Authority. The subscriber data (SDR) and call data records obtained from the service provider and the gadgets were sent to Forensic Science Laboratory for analysis purpose. 4.2 After registration of the offence with NCB Police Station being C.R. No.7 of 2017 and upon completion of the investigation, the chargesheet came to be filed before the Competent Court for the offences as mentioned hereinabove. The trial court proceeded to record the evidence and during the course of trial, the prosecution examined 23 witnesses and exhibited 218 documents. After closure of the evidence and hearing the parties and upon appreciation of evidence, the trial court found guilty the accused no.1 to 8 and recorded that, they were in conscious possession of the contraband and sentenced them to suffer 20 years rigorous imprisonment and fine, whereas the accused no.9 to 13 found guilty for abetment and criminal conspiracy and sentenced them to undergo 10 years rigorous imprisonment with fine. It is relevant to note that the accused no.3, 4 and 11 passed away during the trial and their case stands abated. 5. The applicant-accused no.13 has challenged the judgment of conviction and order of sentence by preferring the appeal and during the pendency of the appeal, he seeks the order of suspension of sentence and grant of bail. 6. We have heard learned advocate Ms.Yashma Mathur for Mr.S.R.Sharma for the applicant, Mr.Ankit Shah, learned standing counsel for the NCB and Mr.Hardik Mehta, learned APP for the State. 7. Ms.Yashma Mathur, learned advocate has submitted that, the prosecution miserably failed to prove the charge of abetment and criminal conspiracy by leading cogent, acceptable and believable evidence. 6. We have heard learned advocate Ms.Yashma Mathur for Mr.S.R.Sharma for the applicant, Mr.Ankit Shah, learned standing counsel for the NCB and Mr.Hardik Mehta, learned APP for the State. 7. Ms.Yashma Mathur, learned advocate has submitted that, the prosecution miserably failed to prove the charge of abetment and criminal conspiracy by leading cogent, acceptable and believable evidence. That, the applicant – accused no.13, during the trial proceedings was on bail and did not have misused his liberty; the accused after his conviction was taken to custody and since then, he is in jail and has undergone 03 years and 03 months; that, the accused-applicant was not crew member and was not found with the contraband; that, in order to prove the charge against the accused, the prosecution mainly relied on the call detail records, transcripts and confessional statements recorded under Section 67 of the NDPS Act; that, it is settled position of law that, the conviction solely based on the CDR and transcript, cannot be sustainable as the evidence of CDR and transcript of communication can be used as a corroborative evidence and not as a substantial evidence; that, the confessional statements made to officers under Section 67 are not admissible in evidence because the officers are considered Police Officers for the purpose of Section 25 of the Indian Evidence Act and thus, the evidence of confessional statement cannot be read in evidence against the accused; that, as per the prosecution case, the applicant-accused made conversation with the accused, however, admittedly, he was never in contact with the principal accused or other accused, who were crew members of the ship. 8. In such circumstances, it is submitted that there is no evidence of conspiracy and abetment, so far role attributed to the applicant is concerned and, there are merits in the case and, therefore, the prayer may be considered. It is further submitted that the co-accused Sujit Tiwari, Vishalkumar Yadav and Suleman Bhadela have been considered by this Court and applying the principle of parity, the prayer, as prayed, may be considered. 9. It is further submitted that the co-accused Sujit Tiwari, Vishalkumar Yadav and Suleman Bhadela have been considered by this Court and applying the principle of parity, the prayer, as prayed, may be considered. 9. On the other hand, opposing the application, Mr.Ankit Shah, learned standing counsel has submitted that, since the accused had been found in the possession of commercial quantity of a contraband and keeping in view of restrictions imposed under Section 37 of NDPS Act and having regard to the observations made by the trial court with regard to involvement of the accused in the process of unloading and sell of the contraband, the accused has to establish his innocence which he failed before the trial court and therefore, no case is made out as prayed for. So far merits is concerned, he submitted that, the trial court in para-43 of the judgment, has discussed about the role attributed to the applicant herein and referred the testimony of PW.20 who had produced the transcript and audio clip along with the Certificate as mandated under Section 65(B)(4)(c) of the Evidence Act. The trial court has recorded that, there is sufficient evidence to infer that the accused was knowing about the contraband and amount of deal allegedly transferred through Havala and the applicant-accused was in contact with the other co-accused so they could unload and sell the contraband. In such circumstances, the learned standing counsel has submitted that, the evidence of audio clip does not require to proved by voice spectrographic analysis as the voice was clear and it is not mandatory in every case to sent the audio clip to the Forensic Science Laboratory for its analysis. 10. Mr.Shah, learned standing counsel in view of the aforesaid submissions, has submitted that, the offence proved is serious one and affecting the society at large and having regard to the seriousness of the case, it is only in exceptional cases the benefit of suspension of sentence can be granted as in the present case, no any exceptional circumstances exist and therefore, the court may not entertain this application. 11. In the facts and circumstances of the present case, the issue arise as to whether case is made out for suspension of sentence and grant of bail ? 12. 11. In the facts and circumstances of the present case, the issue arise as to whether case is made out for suspension of sentence and grant of bail ? 12. In the facts of the present case, the applicant – original accused no.13 was not a crew member and was not on board when the raid was conducted. So far CDR is concerned, the accused applicant was in contact with co-accused, however, in order to connect him with the contraband, prima facie, in our opinion, the evidence is insufficient. So far as applicability of principle of parity is concerned, the co-accused no.9 Sujit Tiwari, Vishalkumar Yadav and Suleman Bhadela have been granted bail by this Court and their substantive sentence has been suspended pending the appeal. In such circumstances, considering the period of incarceration and benefit extended to the co-accused, the case is made out for suspension of substantial sentence and grant of bail pending the appeal. 13. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 29.01.2024 by the learned Special NDPS Judge and Additional Sessions Judge, Porbandar in Special NDPS Case No. 1 of 2017 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to condition that he will not leave India without prior permission of this Court and shall appear before this court as and when appeal is taken for final hearing and shall not change his address and in case of change in address, shall inform to the concerned police station as well as to this Court. Direct service permitted.