MADHURESH PRASAD, J.:–

Re.: Interlocutory Application No. 2014 of 2018

The matter has been heard via video conferencing.

2. Heard Mr. Nafisuzzoha, learned counsel for the appellant-petitioner; Dr. Mayanand Jha, learned Additional Public Prosecutor (hereinafter referred to as the ‘APP’) for the State and Mr. Manoj Kumar Singh, learned counsel for the Union of India.

3. The appellant-petitioner has been convicted under Section 20 (b) (ii) (c) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS’ Act) and sentenced to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs 1,00,000/-.

4. Earlier, prayer for grant of bail and suspension of sentence made on behalf of the appellant-petitioner was rejected on 20.06.2017. Considering more than four years custody of the appellant-petitioner, this Court had directed the office to take steps for preparation of paper book and listing the case for final hearing preferably within eight months. The appellant-petitioner now has remained in custody for more than eight years.

5. On secret information regarding contraband substance being kept in the appellant’s house, for being transported in the night, the Assistant Commandant of Sashastra Seema Bal has reached the appellant-petitioner’s house. From a hennery in the appellant-petitioner’s residence, six packets have been seized containing total 4.5 Kgs. of Charas.

6. It is submitted by the learned counsel for the appellant-petitioner that the mandatory procedure under Section 42 of the NDPS Act has been given a go bye. The officer, on receiving information regarding storage of contraband substance in the appellant’s house and before proceeding for such seizure, was required to take down such information in writing. The Assistant Commandant (P. W. 5), however, in his cross-examination, has not stated regarding the information being taken down in writing. He has only stated about making a note in some general diary. There is also violation of Section 42 (2) of the NDPS Act, since no information has been sent to his immediate superior officer. In view of violation of these mandatory procedures, the entire prosecution case becomes doubtful. The “Qabulnama” (confessional statement), obtained in custody, could not have been relied upon by the Court as “information” under Section 67 of the NDPS Act. Appellant-petitioner’s ownership of the residence has also not been established at the trial.

7. The trial Court’s judgment has also recorded that prosecution has not adduced evidence to prove the charge under Section 23 (c) of the NDPS Act or that the seized Charas has been imported from Nepal for the purpose of selling. The trial Court, in fact, has acquitted the appellant of the offence under Section 23 (c) of the NDPS Act.

8. As against sentence of rigorous imprisonment for twelve years, the appellant-petitioner has already remained in custody for more than eight years. In spite of this Court’s earlier direction dated 20.06.2017 for preparation of paper book and listing the case for final hearing preferably within eight months, till date, the matter has not been listed for final hearing. There is no likelihood of the same being listed, much less taken up, in the near future.

9. Appellant-petitioner’s counsel submits that the aforesaid submissions are sufficient to arrive at a prima facie conclusion that the appellant-petitioner is not guilty of the alleged offence. There is nothing on record to suggest that the appellant-petitioner is likely to commit any offence while on bail. The Court has also given an opportunity to the learned APP to oppose the prayer for bail. The appellant-petitioner, therefore, is entitled to bail upon consideration of the aforesaid facts in terms of Section 37 of the NDPS Act. Referring to decision of the Apex Court in the case of Dadu alias Tulsidas Vs. State of Maharashtra, reported in (2000) 8 Supreme Court Cases 437, he submits that prayer for bail has to be considered st