Full Judgment
R.C. Chopra, J.
1. This order shall dispose of appellant's application under Section 389 of the Code of Criminal Procedure read with the Section 32A of the NDPS Act (hereinafter referred to as the Act only) for suspension of the sentence awarded to the appellant-petitioner.
2. I have heard learned counsel for the petitioner and learned counsel for the respondent. I have gone through the records of the case.
3. The appellant stands convicted under Section 20 of the Act and has been sentenced by the Special Courts to undergo R1 for 10 years and a fine of Rupees one lakh. In default of payment of fine, he is ordered to undergo further RI for 2 years.
4. Learned counsel for the appellant has prayed for bail mainly on the ground that the report of CFSL Ex. P-X could not be admitted in evidence under Section 293(4) of the Code of Criminal Procedure in as such as the Sr. Scientific Officer who signed the report was not one of the officers categorised under Section 293 of the Code of Criminal Procedure 1973 whose report could be admitted in evidence without formal proof. Learned counsel for the petitioner relying upon the judgments reported in Dadu @ Tulsidas etc. v. The State of Maharashtra 2000 (2) JCC (SC) 740, and Islam v. The State of Delhi Admn.) 1995 JCC 16 has argued that when the appeal is likely to be accepted and the accused likely to be acquitted this Court may come to the conclusion that the accused has not committed the offence as alleged and as such the bar of Section 37 of the Act does not stand against him.
5. Upon perusal of the Trial Court file and the evidence on record if appears that CFSL report Ex. P-X was not properly proved on record in as much as the officer signing it was not one of those mentioned in Section 293 of the Code of Criminal, Procedure. On this short ground alone the appellant is likely to succeed in his appeal and get acquitted. In this view of the matter. The bar under Section 37 of the Act does not come into play and the Court can safely come to the conclusion that the appellant does not appear to be guilty of the offence charged. There is nothing to show that in case released on ball he would commit the offence again.
6. In the result the application for suspension of sentence is allowed and the impugned sentence awarded to the appellant is suspended till the disposal of the appeal. The appellant is ordered to be released on bail upon his executing a personal bond in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of the Trial Court with an undertaking that he shall appear before the Court as and when required.
7. Nothing stated herein shall be taken as an expression of opinion on the merit of the appeal as the observations are tentative only.