Non-compliance with mandatory procedures under the NDPS Act and 2022 Rules warrants bail, emphasizing strict adherence to statutory requirements.

ORDER :

1. Heard Ms. S.K. Nargis, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned Additional Public Prosecutor for the State.

2. This application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the petitioner, namely, Sadique Ul Hoque, who has been detained behind the bars since 01.03.2024 (for last 157 days) in connection with Hatigaon P.S. Case No. 39/2024, under Section 20(b)(ii)(C)/29 of the NDPS Act, 1985.

3. The gist of accusation in this case is that on 01.03.2024, one Sri Jeewel Das, SI of Police of Hatigaon Police Station, lodged an FIR before the Officer-in-Charge of Hatigaon Police Station, inter-alia, alleging that an information was received from one Atul Malakar to the effect that his tenant, namely, (1) Md. Haleef Afridi, and (2) Sadique Ul Hoque have been running illegal business of narcotics substance from his rented room situated at Puberun Path, House No. 38, Bye Lane No. 8, Hatigaon. After receiving the said information, the police team from Hatigaon Police Station proceeded to the said place and conducted the search inside the house.

4. During the search operation, 12 numbers of sealed packet wrapped with brown colour cello tape containing suspected ganja, weighing about 23 kg 436 grams, was recovered and three persons namely, Altaf Hussain, Sadique Ul Hoque and Haleef Afridi were apprehended therefrom.

5. The learned counsel for the petitioner has submitted that the petitioner is innocent and not involved in the offence alleged in the FIR against him.

6. The learned counsel for the petitioner has submitted that in the instant case, the Seizing Officer/Investigating Officer has flouted the provisions of Section 52A of the NDPS Act, 1985. She has submitted that on perusal of the seizure list of the contraband, it appears that the sample in duplicate was drawn at the place of occurrence itself by the Seizing Officer, which is in violation of the mandatory provisions of Section 52A of the NDPS Act, 1985. She has also submitted that on perusal of the order dated 02.03.2024, passed in connection with the application filed by the Investigating Officer under Section 52A of the 1st NDPS Act, 1985, by the learned Judicial Magistrate 1 Class, Kamrup (Metro) in Hatigaon P.S. Case No. 39/2024, it appears that the Investigating Officer has not followed the mandate of Section 52A of the NDPS Act, 1985 as well as also flouted the mandate of Narcotics Drugs and Psychotropic Substance (Seizure, Storage, Sampling and Disposal) Rules, 2022 (hereinafter referred to as”2022 Rules”).

7. The learned counsel for the petitioner has submitted that the seized ganja was found in 12 separate packages which was wrapped by brown colour cello tape and at the time of weighing it weighed about 23.436 kgs which included the weight of the packets also.

8. She has submitted that had the weight of the packets taken separately there was every likelihood that the total weight of the seized ganja would have come less than 20 kgs.

9. The learned counsel for the petitioner has submitted that on perusal of st the order dated 02.03.2024, passed by the learned Judicial Magistrate 1 Class, in Hatigaon P.S. Case No. 39/2024, it is apparent that the Investigating Officer had produced the seized ganja in 12 numbers of sealed packets wrapped with brown colour cello tape weighing about 23.436 kg. The sealed packets were marked as A1 to A12. On weighing the sealed packets, it was found that (1) the weight of A1 was 1.950 kg, (2) the weight of A2 was 2.000 kg, (3) the weight of A3 was found to be 1.960 kg, (4) the weight of A4 was found to be 1.927 kg, (5)the weight of A5 was found to be 1.937 kg, (6) the weight of A6 was found to be 1.969 kg, (7) the weight of A7 was found to be 2.004 kg, (8) the weight of A8 was found to be 1.988 kg, (9) the weight of A9 was found to be 1.971 kg, (10) the weight of A10 was found to be 1.972 kg, (11) the weight of A11 was found to be 1.892 kg, and (12) the weight of A12 was found t