1. This is an application filed by the petitioner/appellant/ accused to suspend the sentence and to grant bail to him, where he was convicted and sentenced for the offence punishable under Section 22(c) the Narcotic Drugs and Psychotropic Substances Act, as amended 2001 (hereinafter referred to as ‘NDPS Act’ for short).

2. The sentence imposed by the Special Court, as per judgment dated 07.05.2024, is as follows:

                  “82. In the result, accused is sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ₹1,00,000/- (Rupees One Lakh Only) for the offence u/s. 22(c) of the NDPS Act. In default of payment of fine, accused shall undergo rigorous imprisonment for a period of six months.”

3. Heard the learned counsel for the petitioner/appellant/accused as well as the learned Public Prosecutor. Perused the verdict under challenge and the averments in support of this petition.

4. The learned Public Prosecutor filed an objection, which would reveal that the appellant has involvement in two more NDPS crimes, viz., Crime No.7/2018 of Kunnamangalam Excise Range for the offence punishable under Section 20(b)(ii)B of the NDPS Act and Crime No.27/2019 of Farook Excise Range for the offence punishable under Section 20(b)(ii)B of NDPS Act.

5. The learned counsel for the petitioner/appellant/ accused submitted that the petitioner/appellant/accused firmly believe that he is not guilty of the alleged offence 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.

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

7. This petition is one filed under Section 430 of the the Bharatiya Nagarik Suraksha Sanhita, 2023, 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.”

8. The Apex Court 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.”

9. 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.”

10. 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, before its amendment with effect from 02.10.2001 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.

11. 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 order suspension of the sentence and grant bail and the considerations therein are satisfaction of the twin conditions prescribed under Section 37(1)(b) of the NDPS Act before amendment of the NDPS Act w.e.f. 02.10.2001 in relation to offences committed prior to 02.10.2001. Similarly, after the introduction of Section 37 of the NDPS Act by way of amendment w.e.f. 02.10.2001 for the offence referred therein also satisfaction of the twin requirements must be ensured.

12. It is relevant to note that Section 37 of the NDPS Act before amendment w.e.f. 02.10.2001 and after introduction of the amendment have difference in phraseology and application. Section 37 of the NDPS Act before the amendment w.e.f. 02.10.2001 provides as under:

                  “37. Offences to be cognizable and non-bailable-

                  (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 –

                  (a) every offence punishable under this Act shall be cognizable;

                  (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless—

                  (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

                  (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

                  (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail.”

13. On reading Section 37 before the amendment w.e.f. 02.10.2001, no person accused of an offence punishable for a term of imprisonment of five years or more under the NDPS Act, shall released on bail subject to conditions (i) and (ii) to sub-section (1) of the NDPS Act. In fact, the judgment in Dadu Alias Tulsidas v. State of Maharashtra’s case (supra) was delivered on 12.10.2000 before amendment to Section 37 of the NDPS Act, now in force w.e.f. 02.10.2001, where the term of imprisonment for five years was taken away after substituting the bar under Section 37 came into force w.e.f. 02.10.2001 for offences punishable under Section 19 or Section 24 or Section 27 or for offences involving commercial quantity.

14. It is noticed that while rendering the decision in Farshad v. State of Kerala reported in [2026 KHC OnLine 240], in paragraph No.9, this Court without expressly distinguishing the amended and un-amended provisions viz., Section 37 of the NDPS Act held that the power of the appellate court to suspend the sentence is subject to the rigour under Section 37(1)(b) of the NDPS Act irrespective of the quantity of the contraband. In fact, this legal position is correct only with regard to the cases where Section 37 of the NDPS Act before the amendment w.e.f. 02.10.2001, would apply. In relation to cases other than specified under Section 37 of the NDPS Act came into force w.e.f. 02.10.2001, i.e., all offences excluding the offences under Section 19 or Section

24 or Section 27 and also for the offences involving commercial quantity under the NDPS Act after the amendment came into force w.e.f. 02.10.2001, satisfaction of the conditions under Section 37 would not have application. However, in such cases also ordering suspension of sentence and granting bail to the accused who already found guilty by a competent court after trial should not be so liberal and the courts should consider the nature and gravity of the offences found to be committed, criminal antecedents of the accused with particular reference to his involvement in NDPS Act offences and also the courts should not liberally suspend and grant bail to the accused who was found guilty by the Special Court in a casual manner. The courts should consider this aspect with a view to find that if the accused/appellant would be released on bail, he would repeat the offences and do harm to the society. In this connection, the decision in Dadu Alias Tulsidas v. State of Maharashtra’s case (supra) and subsequent one in the decision in Union of India v. Rattan Mallik Alias Habul reported in [(2009) 2 Supreme Court Cases 624] where the Apex Court considered Section 37 of the NDPS Act before 02.10.2001 and after 02.10.2001 while holding that in cases of commercial quantity, the mandatory requirement of Section 37 of the NDPS Act w.e.f. 02.10.2001 would apply.

15. 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 is in force. 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, involving commercial quantity of the contraband, the twin conditions prescribed under Section 37(1)(b) of the present NDPS Act would apply. Coming to cases outside the purview of Section 37, i.e. other than cases alleging commission of offences under Section 19 or Section 24 or Section 27 and for the offences involving commercial quantity, the statutory interdiction under Section 32A subject to the ratio in Dadu Alias Tulsidas v. State of Maharashtra’s case (supra) would apply. The decision in Farshad’s case (supra) is clarified to the above extent.

16. 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, i.e., the appellate stage, when the presumption of innocence has been given a go-by 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 as amended w.e.f. 02.10.2001. In other cases, sentence suspension can be considered without satisfying the rigour under Section Section 37(1)(b) of the NDPS Act, but the said power should not be exercised routinely as already stated hereinafore. In such cases, persons involved in NDPS Act offences having tendency to engage in dealing with the contraband would not be granted bail after suspending sentence so liberally as the same would encourage him to repeat the offences, which, in fact, is the biggest menace to the society, as the number of drug addicts and drug users is alarmingly increasing day by day, resulting in ruining the cognitive faculty of the young generation.

17. In the instant case, the petitioner/appellant/ accused was sentenced to undergo rigorous imprisonment for five years under Section 22(c) of the NDPS Act when the rigour under Section 37(1)(b) of the NDPS Act as amended 2001 would squarely apply. On reading the judgment impugned, this Court could not found satisfaction of the twin conditions to suspend the sentence imposed on the petitioner/appellant/accused within the statutory frame work.

                  His involvement in two other NDPS cases is an aggravating factor to defeat his bail plea, despite the specific bar under Section 37 of the NDPS Act. Thus the petition is liable to fail.

                  In the result, Crl.M.A.No.1 of 2024 stands dismissed.