P. B. Bajanthri, J.—

I.A. No.01 of 2023 arising out Criminal Appeal (DB) No.201 of 2021:

Brief facts of the case:

The present Interlocutory Application (I.A. No.01 of 2023) is filed by the appellant Suresh Das @ Suresh Das Tatwa under Section 389(1) of the Code of Criminal Procedure for suspension of sentence and his release on bail during the pendency of the Criminal Appeal (DB) No.201 of 2021 filed by him. He is convicted for the offence punishable under Section 20(b)(ii)C of the NDPS Act and sentenced to undergo R.I. for a term of Twelve Years and fine of Rs.1,00,000/- (One Lac) and in default of payment of fine to undergo further Imprisonment for a period of Two Years.

2. Pursuant to the complaint dated 14.01.2018 at about 13:00 P.M, appellant was intercepted by S.S.B. Narkatiaganj at Pachrauta in District-West Champaran and recovered 4.50 kilogram of Charas. Based on this information, the Zonal Director, NCB, Patna, formed a team of NCB, Patna and, thereafter, the team departed from Patna to the place of occurrence. The Inspector of SSB Naresh Kumar narrated the occurrence. The seized substance was sealed with departmental seal and signatures of Seizing Officer, independent witnesses, the Inspector of SSB Naresh Kumar and Suresh Das @ Suresh Das Tatwa (appellant) were obtained on all the sealed packets. The Seizure List and Test Memo were prepared on the spot. Notice under Section 67 of the NDPS Act was served to the appellant and his statement was recorded so also the statements of two independent witnesses were recorded. The appellant along with the seized contraband and samples were produced before the District and Sessions Judge-cum-Special Judge, NDPS Act, West Champaran, Bettiah, on 15.01.2018. Seized contraband and duplicate samples were deposited in NCB Malkhana on 15.01.2018. The sample was stated to have been dispatched to C.R.C.L. Kolkata for its chemical examination. Thus, the appellant, who is alleged to have involved in trafficking Charas from Nepal to India, was subjected to trial. The trial concluded in sentencing him as under:—

“The accused/convict Suresh Das @ Suresh Das Tatwa is here by sentenced to undergo R.I. for a term of Twelve Years and fine of Rs.1,00,000/- (One Lac) U/Sec.20(b)(ii) C of the NDPS Act and in default of payment of fine he shall further be sentenced to undergo Imprisonment for a period of Two Years.”

3. Appellant has questioned the validity of sentence in Criminal Appeal (DB) No.201 of 2021 under Section 374(2) of Cr.P.C. On 06.08.2021, it was admitted. State was asked to file written show cause reply to the application preferred under Section 389(1) of Cr.P.C. on behalf of appellant. On 26.10.2021, Co-ordinate Bench declined to grant bail on the score that 4.5 Kilogram Charas was recovered. In this backdrop, the appellant is in custody for the last about 6 years. In the month of June, 2023, I.A. No.01 of 2023 is filed. This is the 2nd application under Section 389(1) Cr.P.C.

Appellant’s counsel submissions:

4. Learned counsel for the appellant submitted that the appellant has good case on merit in the Criminal Appeal (DB) No.201 of 2021 filed under Section 374(2) of Cr.P.C. and there are chances of his acquittal for the offence under Section 20(b)(ii)C of the NDPS Act. It is submitted that various provisions of NDPS Act has not been followed by the competent authorities. It is submitted that the appellant was not subjected to search before the Gazetted Officer or a learned Jurisdictional Magistrate and it is in violation of Section 50 of the NDPS Act. Similarly, sub-section 5 of Section 50 of the NDPS Act has not been followed. The Investigating Officer was not examined. It is alleged that 9 packets containing altogether 4.5 kilogram of Charas was stated to have been recovered, two samples have not been drawn from each of the packets and it is in violation of Section 52-A of the NDPS Act. It is also submitted that no inventory was prepared, certification of the same, keeping the substance