1. This is a petition filed under Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS’ for short hereafter) seeking to suspend the execution of the sentence passed by the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPS Act’ for short), Vadakara, by judgment dated 03.01.2026 in S.C(NDPS) No.73/2020 and to release the applicants/appellants/accused on bail, pending disposal of this Criminal Appeal, to meet the ends of justice.

2. Heard the learned counsel for the applicants/appellants/accused and the learned Public Prosecutor appearing for State.

3. The learned counsel for the applicants/appellants/accused submitted that the applicants/appellants/accused firmly believe that they are not guilty of the alleged offences and there is a chance of success in the appeal. Therefore, execution of sentence during pendency of this appeal could not serve any useful purpose and accordingly suspension of the sentence has been pressed into.

4. The learned Public Prosecutor pointed out the rider under Section 32A of the NDPS Act while considering suspension of the sentence of accused, who are found to be guilty under the NDPS Act, while opposing the suspension of sentence.

5. This petition is one filed under Section 430 of BNSS, which is a general provision giving discretion to the appellate court to suspend the execution of the sentence or order appealed against and to release the accused on bail or on his bond or bail bond. But in cases under the NDPS Act, Section 430 of BNSS cannot have an independent operation in view of Section 32A of the NDPS Act, which provides as under:

                  “32A. No suspension, remission or commutation in any sentence awarded under this Act.— Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force but subject to the provisions of section 33, no sentence awarded under this Act (other than section 27) shall be suspended or remitted or commuted.”

6. The Apex Curt in the decision reported in [(2000) 8 SCC 437], Dadu Alias Tulsidas v. State of Maharashtra addressed the operation of Section 32A of the NDPS Act and in paragraph 29 held as under:

                  “29. Under the circumstances the writ petitions are disposed of by holding that:

                  (1) Section 32-A does not in any way affect the powers of the authorities to grant parole.

                  (2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act.

                  (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act, as dealt with in this judgment.”

7. Similarly in the decision reported in [(2016) 11 SCC 335], Tara Singh and others v. Union of India and others, the Apex Court when considered this question, held as under:

                  “The petitioners were convicted and sentenced under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The main issue in present case was whether, they have a right to remission under Chapter XIX of the New Punjab Jail Manual, 1996, in view of bar of Section 32-A, NDPS Act and secondly, whether such remission could be granted under Articles 32 and 142, Constitution of India by equating them with Articles 72 and 161.

                  Remission under Chapter XIX of the New Punjab Jail Manual, 1996 is not a right and the State Government reserves the right to debar/withdraw any prisoner or category of prisoners from the concession of remission. Para 565 stipulates that remission is of three types, namely, ordinary remission, special remission and the State Government remission. The State Government issued an order in exercise of powers conferred by Section 432 CrPC and Article 161 of the Constitution of India on 13-4-2007 for grant of remission of sentence to certain types of convicts. As per the said order, its instructions would not apply to the persons sentenced under the Foreigners Act, 1946 and the Passports Act, 1967 and the NDPS Act.”

8. Going by the ratio in Dadu Alias Tulsidas v. State of Maharashtra’s case (supra), even though Section 32A of the NDPS Act doesn’t in any way affect the right of the court to suspend the sentence of a convict under the Act, neverthless a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act, as dealt with in the said judgment. Dadu Alias Tulsidas v. State of Maharashtra’s case (supra) is a 3 Judge Bench judgment and the ratio therein has binding force. In a recent decision of the Apex Court reported in [2025 (2) KHC 78 : 2025 KHC OnLine 6134 : 2025 INSC 190 : 2025 SCC OnLine SC 366 : 2025 KLT OnLine 1450], Narcotic Control Bureau v. Lakhwinder Singh, the Apex Court considered the question as to whether the courts are powerless to grant bail to a convict, pending an appeal against conviction unless the convict had undergone half of his substantive sentence, particularly in cases where appeal is unlikely to be heard before completion of the entire sentence. In the said case, while answering the question, the Apex Court held that, while dealing with an extraordinary situation arising out of the long incarceration of under trial prisoners, this Court directed that in certain cases, the prisoners shall be released on  bail  after  they  complete  a  certain  period  of imprisonment. The directions issued were by way of a one- time measure. This judgment does not take away the power of the Court to grant regular bail even if the period undergone by a prisoner is less than what is provided in the said judgment. The judgment of this Court cannot be read to mean that the powers of the Court to grant bail have been curtailed. If we interpret the judgment of this Court in such a manner, the Courts will be powerless to grant bail or relief of suspension of sentence even if a case is made out on merits. Therefore, in our view, if a case is made out for the grant of suspension of sentence and/or bail in deserving cases on merits, the Court is not powerless to grant relief of suspension of sentence and bail pending an appeal, even if an accused has not undergone half of the sentence. There cannot be a rule of thumb that a convict cannot be released on bail pending an appeal against conviction unless he has undergone half of substantive sentence.

9. On a conjoint reading of the ratio in Dadu Alias Tulsidas v. State of Maharashtra’s case (supra) and that of Narcotic Control Bureau v. Lakhwinder Singh’s case (supra) in juxtaposition with Section 32A of the NDPS Act, the legal position that emerges is that an appellate court has the power to grant the relief of suspension of the sentence and bail and the considerations therein are satisfaction of the twin conditions prescribed under Section 37(1)(b) of the NDPS Act. Thus the power of the appellate court to grant the relief of suspension of sentence and bail is subject to the satisfaction of the twin conditions stipulated under Section 37(1)(b) of the NDPS Act. In a recent decision of the Apex Court reported in [MANU/SC/1534/2025], Union of India (UOI) v. Vigin K.Varghese, another two Judge Bench of the Apex Court considered the impact of Section 37 of the NDPS Act in pre-trial bail and it was categorically held that bail at the pre-trial stage in cases involving commercial quantity of contraband can be granted only subject to the satisfaction of the twin conditions prescribed under Section 37(1)(b) of the NDPS Act. But coming to the power of the appellate court to suspend the sentence, irrespective of the quantity of the contraband the twin conditions prescribed under Section 37(1)(b) of the NDPS Act would apply. In this connection, it is relevant to note that, as per Section 37(1)(b) of the NDPS Act, two conditions are to be satisfied before granting bail to an accused, viz., (i) the court must be satisfied that he is not guilty of such offence, and (ii) that he is not likely to commit any offence while on bail. On scanning the above two requirements at the post conviction stage, ie., the appellate stage, when the presumption of innocence has been given a go-bye by the finding of the trial court, normally it is difficult for an appellate court to arrive at a satisfaction that there are reasonable grounds for believing that the accused would not be found guilty of the offence and only in rare and exceptional circumstances, such a course of action would emerge. The second condition that the accused is not likely to commit an offence while on bail, cannot be satisfied when the appellant has involvement in another offence under the NDPS Act and also this is a hazardous condition to be satisfied normally, subject to a very limited sphere. Thus the legal position is no more res integra on the point that even though an appellate court can suspend the sentence under the NDPS Act, such power can be exercised only in very exceptional cases, on satisfaction of the twin conditions prescribed under Section 37(1)(b) of the NDPS Act. In other cases, sentence suspension cannot be considered.

10. In the instant case, the applicants/appellants/accused were sentenced to undergo rigorous imprisonment for five years under Sections 20(b) (ii)(B) and 29 of the NDPS Act. On reading the judgment impugned, this Court could not find any justification to suspend the sentence within the statutory frame work. It is relevant to note that the learned counsel for the applicants/appellants/accused placed a decision of the Punjab and Haryana High Court reported in [2022 KHC 7391], Bhupender Singh v. Narcotic Control Bureau, where the Punjab and Haryana High Court took a contra view from the binding precedents established by the Apex Court. Therefore, the same cannot be followed, treating as `per-incuriam’ judgment. Otherwise the same has no binding effect rather than mere persuasive value.

                  In the result, this petition is dismissed.