1. These two applications for suspension of sentence have been moved on behalf of the appellant-applicants in the matter of judgment of conviction dated 29.11.2023 and order of sentence dated 30.11.2023 passed by the learned Special Judge, NDPS Act Cases, Nohar, District Hanumangarh in Sessions Case No.46/2022 (CIS No.46/2022), whereby appellant Naresh Kumar was convicted for the offence under Section 8/22 of the NDPS Act and appellant Umesh Sharma was convicted for the offence under Section 8/22 read with Section 29 of the NDPS Act and each of them was sentenced to undergo rigorous imprisonment of 14 years alongwith a fine of Rs.2,00,000/- with default sentence.

2. Learned counsel for the appellant-applicants submit that the appellants have a strong arguable case in their favour. The mandatory provisions of NDPS Act, more particularly Section 42 of the Act, have not been complied with in the case at hand. It is contended 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 hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be allowed.

3. Per contra, learned Public Prosecutor has vehemently opposed the prayer made by learned counsel for the accused- applicants for releasing the appellants on bail.

4. I have heard learned counsel for the parties and gone through the record of the case.

5. The appellants were convicted for committing offence under Section 8/22 of the NDPS Act vide the judgment under assail dated 29.11.2023. They were directed to be imprisoned for a period of 14 years. The appeal has been admitted before this court for the purpose of making further appreciation of evidence.

6. The first and foremost plea raised by the learned counsel for the petitioner seems to be worth consideration, which is about total non-compliance of Section 42 of the NDPS Act and for that purpose, the arguments have been raised that the seizure has been made by an unauthorized person. He drew the attention of this court towards the statement of Manguram (P.W.1), Sub- Inspector of Police, who effected search, seizure and arrest of the accused. Though he portrayed himself as a person having charge of the police station at the relevant point of time when the seizure was made, but surprisingly, when he was subjected to cross- examination, he in unequivocal and unambiguous term has admitted that on 25.05.2022, one Mr. Ravindra Naruka was posted as SHO, Police Station Nohar, but he had gone out of the premises, however, nothing has been produced to show that the charge of the police station had been handed over to the Sub- Inspect Manguram (P.W.1). He candidly made admission of having no document on record or copy of the Roznamcha diary showing the fact of delivering of charge to him before proceeding in the matter of effecting search and seizure. It is noteworthy thatSection 42 of the NDPS Act is a mandatory provision and non- compliance of which vitiates the recovery and even conviction.

7. Section 42 of the NDPS Act read with the Standing Order No.1/1986 issued by the Government of India makes it abundantly clear that only those Sub-Inspectors, who are posted as SHO of a particular police station are authorized to effect search and seizure. A plain reading of the S.O. No.1/1986 manifests that every Sub-Inspector of police is not authorized to effect search and seizure under the NDPS Act. If it has happened, then recovery in this case had been made by an unauthorized officer and doing so the entire proceeding has been vitiated. My opinion is based upon the celebrated judgment of Hon'ble Supreme Court in the case of Roy V.D. Vs. State of Kerala reported in AIR 2001 SC 137.

8. Since a question of law has emerged, which if finally decided in favour of the appellants, then they would get acquittal and the conviction would be vitiated on this count alone, therefore, this court does not wish to continue further incarceration of the appellants till disposal of the appeal. Early hearing of the appeal is not a seeming fate.

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 trial court (details of which are provided in para 1 of this order) against the appellant-applicants named above, shall remain suspended till final disposal of the aforesaid appeals and each of them 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 12.05.2025 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 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 applicant do not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.