IMPORTANT POINT
The court denied bail under the NDPS Act due to the serious nature of drug trafficking charges and failure to meet statutory conditions, emphasizing public safety and legislative intent.

JUDGMENT :

(Divyesh A. Joshi, J.)

1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State.

2. The present successive application is filed under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for regular bail in connection with the FIR being C.R. No.III-05 of 2021 registered with the ATS Station, Ahmedabad of the offence punishable under Sections 8(C), 22 (C), 23 (C), 25 and 29 of the NDPS Act.

3. The case of the prosecution, in brief, is that on the basis of the secret information, the police authority raided the house of the accused No.1 at Morbi, where the accused Nos.1 and 2 were present in the house and accordingly search was conducted of the said house, upon which, Heroin drug of 118.650 kilogram in 15 different packets were found and seized by the police, pursuant to which, the applicant-accused, along with the other co-accused, came to be arrested. Hence, the impugned FIR.

4. Learned advocate Mr. S.D. Mansuri for the applicant submits that the applicant-accused was arrested on 15.11.2021, and since then he is in judicial custody. He further submits that the investigation has already been completed and charge-sheet has also been filed. Learned advocate Mr. Mansuri also submits that the investigation in the present case was taken over by the NCB Team and the charge-sheet being C.R. No.NCB/AZU/CR-06/2022 has been filed by the NCB. Learned advocate Mr. Mansuri submits that the applicant-accused has not played any role in the commission of the offence either directly or indirectly, and even he was not present at the place of offence. Moreover, there is no recovery or discovery of any Muddamal article at the instance of the applicant-accused. Learned advocate Mr. Manusuri further submits that, in fact, there are in all total 119 persons have been cited as witnesses by the prosecution in the charge-sheet papers, however, as of now, trial has not been commenced and charges have also not been framed and the applicant- accused is behind the bar since 2021, i.e., for more than three years. Therefore, considering the period of incarceration already spent by the applicant-accused in the judicial custody, coupled with the fact that the charges have yet not been framed, he may be enlarged on bail. That apart, the other co-accused persons, having graver role than that of the applicant-accused have already been enlarged on bail by this very Court and, therefore, on the ground of parity also, he is entitled to be released on bail. Learned advocate Mr. Mansuri also submits that the applicant-accused does not have any past antecedents either of similar nature, or else.

5. Learned advocate Mr. Mansuri further submits that the Investigating Agency has not followed the requisite procedure as prescribed under the statute for invoking the provisions of the NDPS Act, more particularly, the provisions of Sections 42 and 52(a) of the NDPS Act. He submits that it is mandatory requirement as prescribed under the statute so far as the NDPS offences are concerned, that after the registration of the FIR, the concerned investigating officer has to inform/intimate about the occurrence of the incident to the higher authority in writing. However, if the contents of the charge-sheet is taken into consideration, it appears that after carrying out the search operation, the concerned investigating officer informed the higher authority by sending a message through whats app and, therefore, there is a clear cut breach of the provisions of Section 42 of the NDPS Act. He further submits that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. He also submits that the contraband Heroin was not in the "conscious possession" or "constructive possession" of the applicant but was recovered