1 S.B.Cr.Misc. 2nd Bail Appl (Suspension of Sentence)No.866/2007 IN S.B.CRIMINAL APPEAL NO. 625/2005 (Jakir Hussain vs. State of Rajasthan) Date of order : August 09, 2007 HON'BLE MR.H.R.PANWAR,J. Mr.B.S.Rathore, for the applicant-appellant. Mr.Vishal Raj Mehta, Public Prosecutor for the State. This is second application under section 389 Cr.P.C. seeking suspension of sentence by applicant-appellant Jakir Hussain. Heard learned counsel for the applicant-appellant and the Public Prosecutor for the State. Perused the judgment and order impugned as also the record of the trial court. It is contended by the learned counsel for the applicant- appellant that sample and seized material (Mudda Maal) have not been produced before the trial court, which is evident from the judgment and order impugned. It is further contended that the applicant-appellant is in custody for more than four years and strong arguable point is involved in the appeal. Learned counsel for the applicant-appellant has relied on a decision of 2 Hon'ble Supreme Court in Jitendra and Anr. vs. State of M.P., (2004) 10 SCC 562, wherein the Hon'ble Supreme Court held that the best evidence would have been the seized materials which ought to have been produced during the trial as marked material objects. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act and, therefore, the contention raised by the counsel for the appellant therein that the material seized were not produced before the trial court was accepted and the Apex Court held that the accused are entitled to succeed on the first contention of the learned counsel and the appeal was allowed acquitting the accused therein. In that case, the learned counsel first contended that the seized material have not been produced. In the instant case in para 17 and 18 of the judgment impugned, this question came to be considered by the trial court and the trial court held that neither the sample nor the material seized (Mudda Maal) has been produced before the Court though the trial court noticed that for production of such material is inconvenient but only on this ground the requirement of law cannot be allowed to be bypassed. Keeping in view the decision of Hon'ble Supreme Court in 3 Jitendra and Anr. vs. State of M.P. (supra) and having regard to the facts and circumstances of the case and the fact that undisputedly, the sample and seized material have not been produced before the trial court, which is missing link evidence, I consider it just and proper to suspend the sentence of imprisonment awarded to the accused appellant-applicant. Accordingly, the bail application filed under Sec. 389 Cr.P.C. is allowed and it is ordered that the sentence passed by the learned Special Judge, NDPS Cases, Jodhpur vide judgment dt.6.8.2005 in sessions case No.42/2003 against applicant- appellant Jakir Hussain s/o Wazir Khan shall remain suspended till final disposal of the aforesaid appeal provided he executes a personal bond in the sum of Rs. 20,000/- with two sureties of Rs.10,000/- each to the satisfaction of the learned trial Judge for his appearance before this court on 10.9.2007 and whenever ordered to do so with the incorporation in the bond that as and when he will shift his place of residence, he will intimate to this Court and his lawyer about his new place of residence. (H.R.PANWAR),J. m.asif/-