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. 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 whole process of certification was videographed by videography but no certificate under Section 65B of the Evidence Act was produced by the prosecution before the trial Court. 5.8-The “malkhana register” was not produced by the prosecution before the trial Court, hence possibility of tampering the alleged seized Ganja between 28.08.2022 to 5.11.2022 cannot be ruled out. 5.9- The FSL report was prepared based on samples drawn from such contraband which was not kept in safe custody. 5.8-The “malkhana register” was not produced by the prosecution before the trial Court, hence possibility of tampering the alleged seized Ganja between 28.08.2022 to 5.11.2022 cannot be ruled out. 5.9- The FSL report was prepared based on samples drawn from such contraband which was not kept in safe custody. 5.10-The Investigating Officer, neither taken photograph of the alleged secret cavity made in vehicle at the time of preparing seizure list nor even took pain to take the photograph of said cavity during course of the investigation, which creates doubt on the prosecution case. 5.11-The photograph of alleged cavity made in the vehicle in question has also not been taken while confiscating the vehicle. 5.12-Through the official letter 01.09.2022 issued by District Transport officer, Purnia, Investigating Officer came to know that Mr. Gautam Ghosh, resident of village-Ghaghara Bairiguri, Disrtict Alipur is owner of the vehicle but neither his statement was recorded during investigation nor was he made accused. 5.13- The statement under Section 313 Cr.P.C of the accused-appellant was not recorded in accordance with law. 5.14-Appellants have no criminal antecedent to his credit. 5.15-The appellants are in jail since 29.08.2022 and as such they have served incarceration period of 3 years 5 months and 21 days. 5.16-Several submissions in order to demonstrate the falsity of the allegations made against the appellants have also been placed forth before the Court. 5.17- Lastly, it is submitted that in case appellants are granted bail, they will not misuse the liberty of bail and will co-operate in early hearing of this appeal. 6-Learned A.P.P. for the State opposed the prayer for bail reiterating the persecution case as mentioned in the seizure memo by contending that all the provisions of N.D.P.S. Act have been complied with in true sense. The prosecution has proved it’s case beyond reasonable doubt, hence at this stage presumption of innocence is not available to the appellants. 7-Having heard the learned counsel for the parties and examined the matter in it’s entirety, I find that it is not in dispute that appellants have served about 3 and ½ years sentence against the maximum sentence of 10 years. 7-Having heard the learned counsel for the parties and examined the matter in it’s entirety, I find that it is not in dispute that appellants have served about 3 and ½ years sentence against the maximum sentence of 10 years. The Hon’ble Apex Court in the matter of Bhagwan Rama Shinde Gosai vs State of Gujarat (1999) 4 SCC 421 , has observed that “in a case where there is fixed term sentence, pending an appeal against conviction, a liberal approach should be adopted while deciding the prayer for suspension of sentence unless there are exceptional circumstances.” The Honble Supreme Court in the case of Narcotice Control Bureau versus Lakhwinder Singh 2025 SCC Online SC 366 granted bail to accused considering that he had undergone incarceration for a period of 4 ½ years out of fixed term sentence of 10 years observing that if the relief of bail is denied in such a factual situation only on the ground of Section 37 of the N.D.P.S. Act, it will amount to violation of the right of accused under article 21 of the constitution of India. Almost same situation is also in the case in hand because due to huge pendency of the cases, there is no likelihood for final hearing of this Criminal Appeal in near future and appellant is in jail since 29.08.2022. The appellant have no criminal antecedent. There is no material on record to presume that there is danger, of course, of justice being thwarted by grant of bail to the appellant, hence under the facts of the case and in the light of observation made by the Hon’ble Supreme Court in the case of Narcotice Control Bureau versus Lakhwinder Singh (supra), this Court feels that the provisions of Section 37 of the N.D.P.S. Act stand satisfied, hence this Court without expressing any opinion on the merit of the case is of the view that the appellants are liable to be released on bail during pendency of this Criminal Appeal. 8-In view of the above, the sentence of the appellants shall remain suspended during the pendency of this Criminal Appeal. 8-In view of the above, the sentence of the appellants shall remain suspended during the pendency of this Criminal Appeal. 9-Let the appellants- Habibur Rahaman @ Habibur Rahman and Akramul Mia @ Ekramul Miyan be enlarged on bail during pendency of this appeal in above Case on their furnishing bail bond with two sureties each in the like amount to the satisfaction of the Court concerned subject to deposit of 50% amount fine. The realization of remaining 50% amount of fine shall remain stayed till disposal of this Criminal Appeal. 10-On acceptance of the bail bonds, the concerned Court below shall furnish the photocopy thereof to this Court for being kept on record of this Criminal Appeal. 11-Let this Criminal Appeal be listed in due course for hearing.