Arguing on this second application for suspension of sentence, it is submitted by learned counsel that alleged recovery of flowering or fruiting tops of cannabis plant (contraband) from the vehicle was made by the Seizure Officer in between sunset and sunrise upon receiving information from a mukhbir but the fact about recording the grounds of his belief are conspicuously missing and therefore, it is a clear case of violation of mandatory provision of second proviso to sub-section(1) of Section 42 of the NDPS Act. It is also argued by learned counsel that the information received by SHO concerned from mukhbir was neither reduced in writing nor conveyed to superior officer in compliance of sub-section (2) of Section 42 of the NDPS Act. He, therefore, argued that it is a clear case of violation of mandatory provisions. Learned counsel has also contended that these vital issues are not objectively examined by learned trial Court while recording conviction of the appellant for the charged offences. Mr. Bishnoi, learned counsel for the appellant, has further submitted that the appellant was apprehended for the charged offence on 07.06.2015, and therefore, by this time he has already undergone sentence for more than three and half years is yet another ground for favourable consideration of the application for suspension of sentence, being a case of prolonged custody. Learned counsel has also argued that learned trial Court has acquitted the appellant for offence under Section 8 read with Sections 20 and 29 of the NDPS Act and co-accused Bhagyashree has been granted benefit of suspension of sentence.
