ORDER Learned counsel for the appellant undertakes to remove all the defects within four weeks after start of normal functioning of the Court. 2. This appeal has been placed before this Court for consideration of prayer of the appellant to grant bail and suspension of sentence awarded to him in N.D.P.S. Case No. 60 of 2015 arising out of Raxaul P.S. Case No. 269 of 2015 dated 15.11.2015 by learned 7th Additional Sessions Judge-cum-Special Judge, N.D.P.S. Act, East Champaran at Motihari. 3. The sole appellant in this case has been convicted under Sections 20(b) (ii) (C) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘N.D.P.S. Act, 1985’). The appellant has been sentenced to undergo ten years of rigorous imprisonment with a fine of Rs. 1,00,000/- (one lakh). In default of payment of fine the appellant has to undergo simple imprisonment of three months. 4. Earlier this appeal was admitted on 08.07.2020 and in terms of Proviso to Section 389 Cr.P.C. learned Additional P.P. was directed to file show cause against the prayer for release of the appellant within four weeks. No show cause has, however, been filed on behalf of the State. 5. This Court has heard Mr. Vikash Kumar Pankaj, learned Advocate representing the sole appellant and Mr. Sujit Kumar Singh, learned Additional P.P. for the State. 6. Learned counsel for the appellant has submitted that bare perusal of the impugned judgment would show that the learned trial court has failed to appreciate the various provisions such as Section 42 and Section 50 of the N.D.P.S. Act, 1985 as also the Standing Order in respect of the place and time of drawal of sample. It is submitted that the failure of learned trial court to appreciate that while the N.D.P.S. Act has provided stringent provisions for control and regulation of operations with regard to the Drugs and Psychotropic Substances, the same enactment provides adequate safeguards to the innocent persons. 7. According to learned counsel for the appellant, the learned trial court has not considered the fact that the investigation is full of faults and the Investigating Officer has not strictly adhered to the provisions of the N.D.P.S. Act, particularly with regard the safeguards provided to the accused therein, hence the trial has vitiated. 8. 7. According to learned counsel for the appellant, the learned trial court has not considered the fact that the investigation is full of faults and the Investigating Officer has not strictly adhered to the provisions of the N.D.P.S. Act, particularly with regard the safeguards provided to the accused therein, hence the trial has vitiated. 8. To support his contention, learned counsel submits that in this case the the informant who happens to be the Assistant Commandant of S.S.B. 13th Battalion ‘C’ Company submitted a written statement to Officer-in-Charge of Raxaul Police Station that he got information in the morning at 6:00 AM on 15.11.2015 that one person is entering in the Indian territory from Nepal and he is smuggling Charas which he has to handover to someone in Raxaul. On getting permission, a team was constituted comprising the A.S.I., Head Constable and some Constables who created a checkpoint at a distance of 200 meters from Korihar Chowk. At about 9:00 A.M. one person of the given description came and handed over a bag to a person and a woman standing at some distance. The bag was of white colour, then the police team surrounded the said person, informed them that they have a right to get searched in presence of a gazetted officer or to the nearest Magistrate. 9. Learned counsel submits that according to the informant, all the three persons including the woman became ready to get searched by the police team whereupon they were searched. The informant alleged that on checking of the seized article kept in eight packets in the white coloured bag by a Drug Detection Kit, it was confirmed that those were charas. The packets were weighed with the weight machine which was with the team. In course of search two persons namely Ram Jalan and Jagannath Prasad were standing there as independent witnesses. The person who had come with the bag disclosed his name as Sudarshan Prasad Yadav and the person to whom he had given the bag disclosed his name as Wakil Mohammad (this appellant). The woman also disclosed her name. On search of the persons of the intercepted men and woman one mobile phone was recovered from each of them, thereafter all the three persons were arrested and were brought to the Head Office for further action. 10. The woman also disclosed her name. On search of the persons of the intercepted men and woman one mobile phone was recovered from each of them, thereafter all the three persons were arrested and were brought to the Head Office for further action. 10. Learned counsel for the appellant submits that it is evident from the First Information Report itself that the informant was heading the police team, he was himself a gazetted officer but in terms of the judgment of the Hon’ble Supreme Court in the case of State of Rajasthan vs. Ramchandra reported in AIR 2005 Supreme Court 2221 the officer authorized to conduct the search and gazetted officer in whose presence search should be conducted cannot be the same and one person as the officer authorized to conduct the search, cannot act in dual capacity. 11. Learned counsel then submits that in terms of the Standing Order No. 1 of 88, the samples from the Narcotics Drugs and Psychotic Substances seized must be drawn on the spot of recovery, in duplicate, in the presence of search (panch) witnesses and the person from whose possession the drugs is recovered and mention to this effect should invariably be made in the panchanama drawn on the spot. It is submitted that in this case from the FIR itself it is clear that no sample was made on the spot. The informant who has been examined as PW-7 has stated in examination-in-chief that his team had conducted search on the accused. He has, however, not stated that any sample was made on the spot. In his crossexamination he has stated that he had not prepared the seizure of the bag rather he has stated that he had taken out a small size of the product from the packet and tested the same by a stick of matches and then those packets were kept in the bag. He came back with the packets kept in the bag to his Company Camp, the bag was being carried by one Constable Kuldeep, after few hours the informant reached to Police Station. Kuldeep had carried the seized articles which were handed over in the Police Station. 12. He came back with the packets kept in the bag to his Company Camp, the bag was being carried by one Constable Kuldeep, after few hours the informant reached to Police Station. Kuldeep had carried the seized articles which were handed over in the Police Station. 12. It is, thus, the submission of learned counsel for the appellant that received articles were opened but no sampling was done and then the same was taken to the Camp and then to the Police Station after few hours by a Constable Kuldeep. The Constable Kuldeep has not been examined by the prosecution. 13. Learned counsel then submits that Exhibit-22 is the photocopy of the receipt of Central Forensic Science Laboratory, Kolkata, carbon copy of forwarding report of Central Forensic Science Laboratory, Kolkata is Exhibit-24 and carbon copy of photo copy of forwarding of Regional Forensic Science Laboratory, Muzaffarpur is Exhibit-25. It is submitted that from those exhibits this Court would find that the seized articles were sent for forensic analysis by Investigating Officer after about ten months. Exhibit-26 is the application written by the Investigating Officer on 04.02.2016 by which he had requested the learned District & Sessions Judgecum- Special Judge, N.D.P.S. Act, Motihari to issue order for sending the samples for forensic examination. The specimen sealed impression were covered with cello tape, however, the same was neither signed by the informant nor by the accused which shows that the specimen was prepared at the Police Station after a long lapse of time. Learned counsel submits that what is surprising is that the acceptance receipts of the Central Forensic Science Laboratory, Kolkata is dated 27.9.2016 (Exhibit 22) which shows that one sealed paper packet was sent for examination whereas eight packets were allegedly seized. This receipt shows that the seized article was sent to the laboratory after about 10 months. Same is showing from Exhibit 23. 14. Learned counsel therefore submits that the whole case of the prosecution has vitiated because of this unexplained delay and in this connection learned counsel has relied upon the Hon’ble Division Bench judgment of this Court in the case of Pratibha Devi vs. State of Bihar reported in 2017 (3) PLJR 694 . 15. Same is showing from Exhibit 23. 14. Learned counsel therefore submits that the whole case of the prosecution has vitiated because of this unexplained delay and in this connection learned counsel has relied upon the Hon’ble Division Bench judgment of this Court in the case of Pratibha Devi vs. State of Bihar reported in 2017 (3) PLJR 694 . 15. Learned counsel for the appellant has taken this Court through the Personal Search Memo to show that from the Personal Search Memo of co-accused Sudarshan Prasad Yadav which is Exhibit-3 it would appear that 4 kg charas has been shown received from his possession, and so far as this appellant is concerned, the Personal Search Memo of the appellant which is Exhibit-4 shows that from his possession only one Karbon Mobile with two SIMs and one diary were received. Thus, the prosecution case as disclosed in the FIR that the bag was seized from the possession of this appellant miserably fails. 16. The prosecution witnesses namely woman constable Renuka Tamang (PW-1), Neelu Kumari (PW-2), Manoj Kumar (PW- 3) and others have also stated that the seizure of bag was made from the possession of the co-accused. In the FIR and the Personal Search Memo of this appellant though it shows that one mobile and diary were also seized but in course of evidence those were not exhibited before learned trial court. 17. Learned counsel for the appellant, thus, at this stage, has taken this Court through all these materials to demonstrate that there are reasonable grounds for this Court to believe that the appellant is not guilty. 18. The another submission of learned counsel for the appellant that out of ten years of sentence awarded to the appellant, he has completed almost five years of custody as he has remained in jail since 15.11.2015 till now. Therefore, at this stage, he has served at least half of the sentence and this appeal being that of the year 2020, considering the pendency of the cases, there is no chance of hearing of the appeal in near future. 19. Learned counsel has also informed this Court that the appellant has been diagnosed of Cancer and as such considering the fact that the appellant has otherwise no criminal antecedent and he is also suffering from health issues, he is not likely to commit any crime. 19. Learned counsel has also informed this Court that the appellant has been diagnosed of Cancer and as such considering the fact that the appellant has otherwise no criminal antecedent and he is also suffering from health issues, he is not likely to commit any crime. Lastly, learned counsel has submitted that the appellant ha got 85 years old mother who is a widow and his wife and one child, he is the only earning member of the family, therefore, at this stage, his social integration is necessary. 20. Mr. Sujit Kumar, learned Additional P.P. for the State has opposed the prayer for bail on the basic premise of Section 37 of the N.D.P.S. Act, 1985. Learned counsel submits that unless this Court satisfies itself that there are reasonable grounds to believe that the appellant is not guilty which is the requirement of Section 37, and then the appellant will not indulge in similar offence, the appellant does not deserve bail. 21. He has, however, fairly submitted that the another aspect of the matter that the appellant has already remained in jail for almost five years and the appeal is not likely to be heard in near future, seems to be a valid ground for consideration. 22. 21. He has, however, fairly submitted that the another aspect of the matter that the appellant has already remained in jail for almost five years and the appeal is not likely to be heard in near future, seems to be a valid ground for consideration. 22. As the argument progressed and learned Additional P.P. was confronted with the various aspects of the matter as appearing from the materials on the record and the submission of learned counsel for the appellant such as that the search was not conducted in presence of a Gazetted Officer or a Magistrate which is violation of Section 50 of the NDPS Act a mandatory provision safeguarding the innocent persons, the seizure list witnesses (PW-9 and PW-10) have stated in cross-examination that they were at their own respective place where they were asked to put their thumb impression and that PW-10 has gone to the extent of saying that in his presence no Ganja or Charas was seized, the Personal Search Memo (Ext.-3) shows the recovery of Charas from possession of co-accused Sudarshan Prasad Yadav and not from this appellant, the samples of seized articles were not prepared on spot and does not bear signature of the informant, seizure list witnesses and the accused, the seized articles were first taken to the Camp and after few hours the same were brought to the police station and there was a huge delay of 10 months in sending the sample that too only one packet to FSL, learned Additional P.P. could not satisfactorily explain so as to impress upon this Court to take a view that requirement of the conditions under Section 37 of the NDPS Act are not satisfied. 23. 23. This Court has noticed the materials on the record showing that the search was not conducted in accordance with the mandatory provision of Section 50 of the NDPS Act, Exhibit-3 showing that the eight packet of Charas kept in a bag was seized from possession of co-accused Sudarshan Prasad Yadav and not from possession of this appellant, that no sample of the seized Charas was made on spot in presence of the seizure list witnesses and the accused, the informant did not put his signature on the seal on the sample of the seized article, the torn packets were first taken to the Camp by one Kuldeep and then it was brought to the Police Station and handed over to Police, the samples were prepared later on after few months in absence of the accused and were sent for forensic test after about ten months. This Court has further noticed the judgments of the Hon’ble Apex Court in the case of Ramchandra (supra) in which Hon’ble Apex Court has held that Searching Officer and the Gazetted Officer under Section 50 of the NDPS Act cannot be the same, and Pratibha Devi (supra) and Muneshwar Pandit vs. State of Bihar reported in 2018 (1) PLJR 494 [: 2017 (4) BLJ 145 (PHC)] in which 10 days of delay in sending the samples and non-preparation of samples on spot were held fatal to the prosecution and the trial was declared vitiated, as also another Hon’ble Division Bench Judgment of this Court in the case of Md. Samsul vs. Union of India reported in 2018 (4) PLJR 261 authored by me sitting in Division Bench with the Hon’ble Chief Justice in which reliance has been placed on Hon’ble Apex Court judgment holding non-compliance of Section 50 of NDPS Act fatal to the prosecution, this Court is satisfied that the appellant has been able to make out more than one reasonable grounds as envisaged under Section 37(1)(b)(ii) of the NDPS Act. Thus, the first part of the condition imposed by Section 37 of the N.D.P.S. Act 1985 is fulfilled. Thus, the first part of the condition imposed by Section 37 of the N.D.P.S. Act 1985 is fulfilled. So far as second part is concerned, again this Court finds from the impugned judgment that this appellant has no criminal antecedent, is looking for his integration with family and society to take care of his own health and the family and as such there is nothing to take any view other than that he is not likely to commit any offence while on bail. 24. For the reasons stated hereinabove, this Court directs that during pendency of this appeal the appellant be released on bail on furnishing of bail bonds of Rs. 25,000/- (twenty five thousand) with two sureties of the like amount each to the satisfaction of learned 7th Additional Sessions Judge-cum-Special Judge, N.D.P.S. Act, East Champaran at Motihari in N.D.P.S. Case No. 60 of 2015 arising out of Raxaul P.S. Case No. 269 of 2015. The fine imposed against the appellant shall remain suspended. 25. Before this Court parts with the order it is made clear that the observations of this Court made hereinabove are only for the purpose of considering the prayer for bail and suspension of sentence of the appellant keeping in view the requirement of Section 37 of the N.D.P.S. Act, 1985 and it shall neither prejudice the case nor the contentions of the prosecution at the stage of final hearing.