ORDER : ILESH J. VORA, J. 1. Rule. Learned APP waives service of Rule on behalf of respondent-State. By consent, Rule is fixed forthwith. 2. By way of this application under Section 430 (1) of BNSS , 2023, the applicant-original accused no.9 – Sujit Tiwary, 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 appeal and the 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.1000 00 SI for 1 month S.23(c), 25 & 29 of NDPS Act RI for 10 yrs Rs.1000 00 4. Facts and circumstances giving rise to file appeal as well as present application are as follows: 4.1 The applicant-accused A-9 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 Suprit 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. Thereafter, the Intelligence Officer, 8 crew members and witnesses along with narcotic substance came to Old S.P. Office, Porbandar for further proceedings. 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 - Suprit 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 electronic gadgets like laptops, mobile phones allegedly used by the accused in commission of the offence were recovered and seized by the Authority. 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 accused no.9 – Sujit Tiwary 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 senior counsel Ms.Jal Soli Unwala assisted by learned counsel Ms.Vishal Anandjiwala, for the applicant, Mr.Ankit Shah, learned standing counsel for the NCB and Mr. L.B. Dabhi, learned APP for the State. 7. Mr.Unwala, learned senior counsel has submitted that, the prosecution miserably failed to prove the charge of abetment and criminal conspiracy by leading cogent, acceptable and believable evidence. L.B. Dabhi, learned APP for the State. 7. Mr.Unwala, learned senior counsel 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.9 – Sujit Tiwary, 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 3 years and 10 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, in the present case, in order to prove the authenticity of the transcript, no voice comparison or spectrography test being done and therefore, merely production of transcript would not automatically prove that the conversation made by the accused; that, in absence of any conclusive evidence to attribute the voice in the recording of the accused, the trial court committed an error of law while relying upon such evidence which is inadmissible in the eye of law; that, the mobile instrument allegedly recovered from the applicant herein and others were not seized in the presence of panchas, nor the panchnama was being drawn at the time of recovery, thereby rendering the seizure procedure highly doubtful and legally unsustainable; that, the prosecution failed to establish the credible chain of custody with respect to the seized mobile instruments and voice of conversation which creates a serious doubt on the authenticity and evidentiary value of the evidence. 8. 8. In such circumstances, as pointed by learned senior counsel Mr.Unwala, he would further urge that, in the absence of any substance found in the conscious possession of the applicant herein and inadmissible electronic evidence as referred above, there is no sufficient material to establish the complicity of the accused in the alleged abetment and conspiracy allegedly hatched by the co-accused and thus, the trial court on the basis of surmises and conjunctures, held guilty the accused and the said findings appears to be contrary to the evidence on record and therefore, prima-facie, the conviction of the applicant is not sustainable. Thus, therefore, it was urged that, having regard to the period of incarceration and no possibility of appeal being heard before completion of the entire sentence, the case 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. 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. In the facts of the present case, the applicant – original accused no.9 is the real brother of accused no.1, who was captain on ship. The applicant was not crew member and was not on the ship when the raid was conducted. So far as role of the present applicant is concerned, the accused no.1 was in touch with him on the mobile phone and made some conversation on whatsapp. The learned Trial Court, while convicting the applicant with the aid of Section 29 of the NDPS Act, took into account called details record and transcript of the whatsapp. In the judgment at Page-691, the Trial Court observed that there were audio-clips containing the conversation amongst the accused with regard to deal of contraband and proposed amount to be received by the captain A-1. The Trial Court while convicting the accused as discussed above, mainly relied on called details records and transcripts in the form of whatsapp chats. It is settled position of law that the called details and transcripts evidence individually and collectively cannot form sole basis for conviction, as it can be used as a corroborative evidence, not stand alone unless the other evidence pointing guilt towards the accused. It is relevant to note that the whatsapp chats having been produced by the prosecution without producing the certificate, as mandated under Section 65B(4) of the EVIDENCE ACT . Recently, in the case of Arjun Pandit Rao Khotkar Vs. It is relevant to note that the whatsapp chats having been produced by the prosecution without producing the certificate, as mandated under Section 65B(4) of the EVIDENCE ACT . Recently, in the case of Arjun Pandit Rao Khotkar Vs. Kailash Kushan Rao , ( 2020(7) SCC 1 ) , after referring the case of Anwar P.V. Vs. P.A. Bashir , ( 2014(10) SCC 473 ) , the Supreme Court has held that no electronics evidence is admissible, unless 65B(4) certificate is produced. So far as audio clips as referred by the Trial Court is concerned, the same has not been verified by voice spectrography test. In such circumstances, having regard to the role attributed to the present applicant herein, and nature of evidence, led by the prosecution, and out of 10 years, the accused has undergone 3 years and more and having backlog of criminal appeals, the appeal filed by the convict may not likely to be heard in near future, 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, 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.