IMPORTANT POINT
Bail application – NDPS cases – Procedures prescribed in Standing Orders are based on certain logic – Standing Orders on manner of seizure of narcotics drugs issued by Narcotics Control Bureau must be observed by probe agencies and they cannot be rendered optional for compliance.

ORDER

The applicant is under arrest in connection with crime registered pursuant to F.I.R. Number 25/2023 of Police Station CBN, Neemach, in respect of offence punishable under Section 8/18(B) of Narcotic Drugs and Psychotropic Substances Act, 1985. He has approached this Court by way of this second application for bail under Section 439 Cr.P.C.

2. Earlier, applicant made an endeavor for seeking bail by way of filing first bail application which was disposed of without considering the merits of the case since it was not pressed.

3. Before I proceed to examine the rival contentions in connection with the questions of bail, it would be appropriate to briefly state the facts of the present case which are that based on the secret information, on 14.07.2023 at around 15.30 hours, a total of 4.400 Kgs. of contraband Opium was found in the possession of the petitioner under the Debari Bridge on the Udaipur-Dabok Highway in Udaipur. The petitioner was detained along with the contraband. As per seizure officer, since it was not possible to take proper action on the spot itself therefore, both the contraband and the petitioner were taken to the Narcotics Office in Neemuch, where further action of seizure and arrest was undertaken.

4. To begin at the beginning, Shri Naneet Poonia, learned counsel representing applicant has fervently argued that statement of seizure officer has already been recorded during the trial. He has drawn the attention of the Court to the statement made by this witness and contended that though the search was effected in Udaipur (Rajasthan) yet no seizure memo was prepared and no samples were taken from the contraband article on the spot; the seizure memo was prepared in the Office of Narcotics Department at Neemuch and the samples were also taken there. This has caused serious prejudice to the petitioner. According to him, the seizure memo should have been prepared at the place where the contraband article was seized from the accused.

5. He further pointed out that yet the recovery was effected but the contraband article was not seized and sealed at the spot and petitioner, his motorcycle and contraband were brought to Neemuch. The learned counsel further contended that had the search and seizure memo been prepared at the spot, it could have been satisfactorily proved that it was from the petitioner’s possession that the bag was taken. Concluding submissions, he asserted that applicant is entitled to be enlarged on bail.

6. Shri K.S. Nahar, learned Special Public Prosecutor for the State has strongly objected the different submissions made by learned counsel for the applicant and submitted that 4.400 Kgs. of contraband opium recovered from the applicant falls within the ambit of commercial quantity and the bar as contained in Section 37 of the NDPS Act is attracted. He further submits that the seizure and sampling was in consonance with the procedure and the shortcomings pointed out by the learned counsel for the petitioner cannot be considered at this stage and are to be decided after trial only. It is further argued that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner indulges in illegal trade of narcotics; that the petitioner does not deserve any sympathy as the petitioner is a drug peddler. He thus, craves rejection of the applicant’s bail application. Learned Special Public Prosecutor fortified the above made submissions by placing reliance on the judgement rendered in the case of Khet Singh vs. Union of India, AIR 2002 (S.C.) 1450.

7. I have given my anxious consideration to the rival submissions with reference to material placed before me.

8. On perusal of the record and upon consideration of the submissions, it would be clear that statement of seizure officer Anil Kumar (PW-1) has already been recorded during the trial. In the present case, two different memos have been prepared by the seizure officer regarding the search and seizure at different places and tim