Liberal approach for bail pending appeal in NDPS cases where substantial sentence (3.5/10 years) served, no antecedents, no exceptional circumstances, satisfying Section 37 and upholding Article 21.

ORDER :

Heard learned senior counsel for the appellants and learned Additional Public Prosecutor representing the State.

2-This appeal under Sections 415 (2) and 430(1) of B.N.S.S. has been preferred by the appellants namely Habibur Rahaman @ Habibur Rahman and Akramul Mia @ Ekramul Miyan against the judgment of conviction dated 06.01.2025 and order of sentence dated 10.01.2025 passed by the learned Additional Sessions Judge-IV, Purnea in NDPS Special Case No. 71 of 2022, CIS No. 71 of 2022 (arising out of Madya Nishedh Purnea P.S. Case No. 423 of 2022) registered under Sections 8(c), 20(b)(ii)(C), 25 of the NDPS Act 1985 convicting and sentencing the appellants as under:-

(a) 10 year’s rigorous imprisonment and fine of Rs. 100000/- each for the offence under Section 20(b)(ii)(C) of the N.D.P.S Act, 1985 and in default of payment of fine, 1 year’s additional simple imprisonment.

(b) 10 year’s rigorous imprisonment and fine of Rs. 100000/- each for the offence under Section 25 of the N.D.P.S Act, 1985 and in default of payment of fine, 1 year’s additional simple imprisonment.

All the sentences are ordered to run concurrently.

3. The appellants have prayed for suspension of their sentence and release on bail during the pendency of this criminal appeal before this Court.

4-Brief facts of the case, which are required to be stated, are that on the written report of SI Sanjay Kumar (PW1), First Information Report was registered as Madya Nishedh PS Case No. 423/22. In the F.I.R. it is alleged inter-alia that on 28.8.2022, a police team comprising the informant, Inspector Vijay Kanth Thakur (PW2), Constable Bikku Kumar (PW3), and other officers was conducting vehicle checks at the Daalkola check post. During the vehicle checking, they intercepted a silver Toyota Innova (bearing Reg. No. WB79 3351) traveling from West Bengal to Purnea. Upon stopping, the three occupants, identified as Habibur Rahman (driver), Sujit Roy, and Ekramul Miyan, attempted to flee the scene but were immediately apprehended. Subsequently, in the presence of two independent witnesses, Md. Tamsir and Md. Halaaz, the police conducted a search of the vehicle and discovered a secret chamber containing 70 packets of Ganja wrapped in brown plastic. The total recovery weighed 123.219 kg. The contraband was sealed, and the vehicle (Engine No. 2KD9879882, Chassis No. MBJ11JY4007085671) was seized. The seizure list and arrest memos were duly executed and signed by the witnesses, leading to the accused being charged with illegal possession and transportation of Ganja.

5-The main substratum of argument of learned senior counsel for the appellants are as under:-

5.1- The appellants are innocent and they have been falsely implicated in this case.

5.2- As per the prosecution case two persons namely Md. Tanwir and Md. Hafaaz have been shown to be an independent witnesses of search of vehicle, recovery of ganja in question on 28.08.2022 and they are witness of seizure list but they have not been produced by the prosecution before the Trial Court and no reason has been given by the prosecution for not producing those independent witnesses, which creates serious doubt on the prosecution case.

5.3- Even during investigation, the statement of both the independent witnesses was not recorded.

5.4- Seizure of alleged Ganja was made on 28.08.2022, but no sampling was done at the spot.

5.5-The accused persons along-seized Ganja and vehicle were produced before the Court of Special Judge (NDPS Act), Purnia on 29.08.2022 but on that also no sampling was done.

5.6-The application for sampling and certification of Ganja in question as well as application for confiscation of vehicle was given to the concerned Court on 09.09.2022 but the sampling and certification under Section 52A of the NDPS Act was done after unreasonable delay on 05.11.2022. The vehicle was directed to be kept in malkhana.

5.7-It is alleged that whol