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2020 (11) TMI 74 - HC - Indian LawsSmuggling - Heroin - fulcrum of the argument of the learned counsel for the appellant is that the prosecution was unable to establish beyond reasonable doubt that the appellant was in conscious possession of the contraband - whether the suspension of sentence sought by the appellant is permissible within the stringent parameters laid down under Section 37(1)(b) of the NDPS Act? HELD THAT:- It is beyond a doubt that by a reading of the provision the parameters laid down are with respect to grant of bail, but by judicial pronouncements they have been made applicable to cases of suspension of sentence under the NDPS Act also - It is evident that the broad principles that the Court needs to apply and satisfy itself while considering an application for grant of suspension of sentence is that the appellant is not guilty of the offence and there are reasonable grounds to arrive at such a belief as also that he is not likely to commit the offence once the sentence is suspended. There are force in the contention of the learned counsel for the appellant that the charge for the offence punishable under Section 29 of the NDPS Act pertaining to criminal conspiracy to possess the contraband substance or to deal with it, was held to be proved only against the co-accused Mandeep Kaur and not against the appellant. The Trial Court has observed that there was no independent corroborative evidence led by the prosecution to substantiate the said charge. It has also come in evidence that the appellant was only a driver of the main accused Balwinder and had been hired by the latter a few days prior to the alleged incident. During the course of the argument learned counsel for the appellant had repeatedly pointed out that Balwinder is absconding for the last several years and his status as reflected is of a proclaimed offender. There was no rebuttal to this by the Respondent”s counsel. The additional factor in the present case is that the appellant had subsequently retracted the statement and therefore as per law a retracted statement, even though retraction is not proved, is a weak piece of evidence to connect the accused to the alleged offence. There are force in the contention that being a driver the appellant was prima facie not in conscious possession of the contraband and therefore there exists a reasonable ground to conclude that he may not be guilty of the alleged offence. In view of the fact that the appellant has undergone major part of the sentence and the fact that his wife is suffering from multiple medical ailments, with nobody to look after her and the four minor children, the present application deserves to be allowed - sentence awarded to the appellant shall remain suspended during the pendency of the appeal. Appellant was directed to be released granting interim suspension of the sentence by this Court vide order dated 22.06.2020 for a period of 45 days and the interim suspension was extended up to 31.10.2020. Application disposed off.
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