Discrepancies in evidence under the NDPS Act can justify bail if the applicant meets the twin test and has no criminal antecedents.

JUDGMENT :

(MANISH PITALE, J.)

1. Heard learned counsel for the applicant and learned APP for the respondent-State.

2. The applicant has approached this Court seeking bail as he was arrested on 3^rd May 2023 in connection with C.R. No. 59 of 2023 registered at Kurla Police Station, Mumbai, for offences under Sections 8(c), 21(c), 20(b)ii(a) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

3. The allegation in the present case concerns contraband charas and mephedrone (MD). It is alleged that charas weighing 82.25 grams and MD weighing 102.5 grams were seized in the present case, both being commercial quantities.

4. Upon completion of investigation, charge-sheet was filed and the applicant has remained in judicial custody since 3^rd May 2023.

5. The learned counsel for the applicant referred to the documents filed along with the charge-sheet and he submitted that the panchanama in the present case executed on 2^nd May 2023, refers to the contraband being seized and placed in pista coloured packet, while the inventory panchanama executed on 13^th June 2023 shows that the contraband was taken out before the Magistrate from khaki coloured packet. It is submitted that this discrepancy goes to the root of the matter and raises a serious doubt about the contraband allegedly seized at the time of execution of the panchanama on 2^nd May 2023 being the very contraband placed before the Magistrate during execution of inventory panchanama under Section 52A of the NDPS Act.

6. Another discrepancy highlighted on behalf of the applicant was that while the inventory panchanama dated 13^th June 2023 recorded before the Magistrate showed that it was executed between 13:30 hours and 13:45 hours, the photographs appended thereto, which were allegedly taken on the personal mobile phone of one of the Police personnel, were clicked between 15:09 hours and 16:27 hours, thereby indicating that there was serious doubt about the veracity and genuineness of the entire exercise conducted under Section 52A of the NDPS Act. It was submitted that such samples were then forwarded to the chemical analyzer, calling for a report. By highlighting the aforesaid discrepancies, it was submitted that the applicant has made out a strong prima facie case in his favour and since he has no criminal antecedents, the applicant has satisfied the second limb of the twin test contemplated under Section 37 of the NDPS Act.

7. On the other hand, the learned APP submitted that all the mandatory procedures prescribed under the NDPS Act and Rules were scrupulously followed in the present case. It was submitted that the grounds raised on behalf of the applicant, could be a matter for trial, but no relief can be granted in the present application.

8. This Court has considered the rival submissions. There can be no doubt about the fact that object of the NDPS Act is to ensure that use of prohibited substances and contraband is effectively checked and those indulging in such activities, are apprehended and proportionately punished. The provisions of the NDPS Act provide for substantial powers with the Police personnel and the Investigating Authority, but at the same time, the mandatory procedures prescribed under the said Act need to be followed, so that the possibility of false implication is ruled out. It is for this reason that Courts have been strictly applying the mandatory provisions of the NDPS Act, even while considering the bail applications moved by accused under-trials, who are facing prosecution under the provisions of the NDPS Act.

9. In this backdrop, when the specific contentions raised on behalf of the applicant are considered, this Court finds substance in the said contentions. The record shows that while the panchanama executed on 2^nd May 2023, specifically recorded that the contraband was seized and stored in pista coloured packet, when the inventory panchanama was executed subsequently on 13^th June 2023 before the Magistrate, it was recorded that the