Patna High Court – Orders
Habibur Rahaman @ Habibur Rahman vs The State Of Bihar on 19 February, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1599 of 2025
Arising Out of PS. Case No.-423 Year-2022 Thana- Excise P.S. District- Purnia
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1. Habibur Rahaman @ Habibur Rahman S/O Abdul Haqim R/O Golenahaati,
P.S- Sitalkuchi, District- Kooch Bihar, State- West Bengal.
2. Akramul Mia @ Ekramul Miyan S/O Md. Ali Miyan R/O Nagar
Sindhimaari, P.S- Sitalkuchi, Distt.- Kooch Bihar, State- West Bengal.
... ... Appellant/s
Versus
The State of Bihar ... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Y.V. Giri, Senior Advocate
Mr. Devashish Giri, Advocate
For the State : Mr. Ramchandra Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR SINGH
ORAL ORDER
4 19-02-2026
1-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.
Patna High Court CR. APP (SJ) No.1599 of 2025(4) dt.19-02-2026
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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
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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
Patna High Court CR. APP (SJ) No.1599 of 2025(4) dt.19-02-2026
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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
Patna High Court CR. APP (SJ) No.1599 of 2025(4) dt.19-02-2026
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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
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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. The Hon’ble Apex Court in
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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),
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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.
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.
(Sanjay Kumar Singh , J)
Prakash/-
U
