IMPORTANT POINT
The main legal point established in the judgment is the requirement for a prima facie finding for bail under Section 37 of the NDPS Act, the interpretation of the FSL report, and the need for chemical tests to determine the presence of THC.

JUDGMENT

Amit Sharma, J. - The present application under Section 439 of the Code of Criminal Procedure, 1973 (`CrPC') seeks regular bail in case FIR No. 54/2020 under Sections 20/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPS Act') registered at PS Crime Branch.

2. The case of the prosecution is that on 24.02.2020 at 7:00 AM, an information was received with regard to one Masibur, coming to new Delhi Railway station via Apurva Express from Kolkata carrying ganja which will be delivered to the Bali Khan, the present applicant. Accordingly, after completion of necessary formalities, a raid was conducted and the present applicant was apprehended along with driver of the Eco Van from which ganja was recovered. Accused Masibur was able to run away from the station and was subsequently arrested. After completion of investigation, chargesheet in the present case was filed.

3. Learned counsel appearing on behalf applicant submitted that the latter has been falsely implicated in the present case. It was submitted that in the present case, result of the examination of the seized contraband was filed by the Forensic Sciences Laboratory, Delhi (`FSL) as Ex.PW-3/1 under the seal of Dr. Adesh Kumar and he appeared before the learned Trial Court as PW-3. In his cross-examination, he referred to the chemical test and stated `I had conducted the Fast Blue B Test, During the chemical test, after mixing the chemical into contraband shows YELLOWISH COLOUR followed by sodium hydroxide'.

4. It was submitted that the applicant moved an application under Section 91 of the CrPC before learned Special Court and vide order dated 11.10.2022, the same was allowed. In pursuance of the said order, the FSL officials filed relevant records and copies of the same were supplied to learned counsel appearing on behalf of the applicant. It was submitted that as per the Working Procedure Manual issued by Forensic Science Laboratory, Govt. of NCT of Delhi, two types of chemical tests, i.e., `Fast Blue B Salt Test' and `Duquenois-Levine Test (1)' are required to be conducted on the samples. It was pointed out that as per the `Fast Blue B Salt Test', a purple-red colour would indicate a product containing cannabis and in `Duquenois-Levine Test (1)', a violet colour would indicate the presence of cannabis. It was further pointed out that `Recommended Methods for the Identification and Analysis of Cannabis and Cannabis Products' published by the United Nations Office of Drugs and Crime is part of the references with regard to methods of identification of cannabis in the aforesaid Working Procedure Manual issued by the FSL. Attention of this Court was drawn to the portion of the aforesaid United Nations document, wherein a similar colour combination is given with respect to the aforesaid tests as contained in the Working Manual issued by FSL. However, with regard to the Duquenois-Levine Test (1), it is stated that if the sample solution assumes a deep yellow colour, the same should be discarded.

5. It was further submitted that in the present case, notice under Section 50 of the NDPS Act was also not in compliance of a judgment dated 28.03.2023 delivered by coordinate bench of this Court in BAIL APPLN. 1725/2022 titled `Mohd. Jabir v. State of NCT of Delhi', wherein it has been held that as per Section 50 of the NDPS Act, `Nearest Magistrate or Gazetted Officer' should be mentioned in the notice under Section 50 of the said Act. It was further submitted that the present applicant has been in judicial custody for more than 03 years since 24.02.2020. Out of 40 witnesses cited by the prosecution, only 21 witnesses have been examined so far and therefore, the trial is not likely to conclude in near future. Reliance was placed on the following judgments:

i. Rabi Prakash vs. State of Odisha, Order dated 13.07.2023 passed by the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No. 4169/2023.

ii. Dilip v. State, 2010:DHC:3195-DB.

iii. Deep Chand Kumar v. Na