Point of Law: petitioner cannot be extended benefit of bail on the ground that reduction in weight of the contraband seized was noticed at the time of certification by the Magistrate under Section 52A than the weight taken at the time of seizure, since, it could be on account of loss of moisture or in any case, it is subject matter of trial.

ORDER :

1. This is second bail application of the accused-petitioner under Section 439 Cr.P.C. The first bail application was dismissed as withdrawn vide order dated 5.12.2020. The petitioner has been arrested in connection with FIR No. 258/2020, registered at Police Station Vijay Nagar, District Ajmer for the offences under Sections 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the Act of 1985’).

2. The facts in brief are that on 27.8.2020, a car bearing no. DL-3C-BM-5773 was intercepted by a police party on receipt of an information from the Police Outpost 29 Miles, Police Station, Gulabpura, Bhilwara of its breaking the police barricade. The present petitioner was driving the Car. On search of the Car, 66.300 kgs of poppy straw was recovered from four plastic bags. During the investigation, the petitioner was arrested. After investigation, charge-sheet under Section 8/15 of the Act of 1985 has been filed against him.

3. Relying on the provisions of Section 52A (2)(c) of the Act of 1985 and the judgment of the Hon'ble Apex Court of India in the case of Union of India vs. Mohanlal and Another, (2016) 3 SCC 379, learned counsel for the petitioner submitted that since samples of the contraband were not drawn in presence of the Magistrate, the entire investigation stands vitiated. Learned counsel submitted that the dictum laid down by the Supreme Court in the case of Mohan Lal's case has been followed by various High Courts and referred the judgments of Punjab and Haryana High Court in Bikram Singh vs. State of Punjab in Criminal Miscellaneous No. M-12946/2017 (O&M) dated 26.05.2017 and Surjit Kumar @ Babbu vs. State of Punjab in CRM-39622-2016 in CRA-S-1338-SB-2015 dated 10.03.2017, judgment of Delhi High Court in Amani Didel Chris vs. Narcotics Control Bureau dated 13.03.2020, judgment of Bombay High Court in Jawed Khan vs. State of Maharashtra in Criminal Application No. 192 of 2020 in Criminal Appeal No. 30 of 2020 dated 03.03.2020 and judgment of Patna High Court in Bhairo Singh vs. State of Bihar in Criminal Appeal (DB) No. 276 of 2015 dated 06.11.2017.

4. Shri Poonia submitted that Article 141 of the Constitution of India mandates that any law declared by the Supreme Court shall be binding on all the courts within the territory of India and hence, for violation of the direction given in Mohan Lal's case, the petitioner is entitled to be released on bail.

5. He further submitted that the Ministry of Home Affairs, Government of India, Narcotics Control Bureau, New Delhi, has issued a Circular a Circular dated 21.2.2020 laying down SOP on drawal of samples under Section 52A in the presence of the Magistrate which is in conformity with the judgment of the Hon'ble Supreme Court of India in case of Mohan Lal.

6. Learned counsel for the petitioner submitted that there has been non-compliance of the Standing Instruction No. 1/88 issued by the Narcotics Control Bureau in failure in sending the samples to Forensic Science Laboratory (for short ‘the FSL’) within seventy two hours of the seizure. Relying upon the judgments of this Court in Ashok Kumar vs. State of Rajasthan in SB Criminal Misc. Bail No. 1314/2018 decided on 29.11.2018, Dinesh @ Rinku vs. State of Rajasthan in SB Criminal Misc. Bail Application No. 3342/2020 decided on 07.09.2020 and the judgment of the Supreme Court in Noor Aga vs. State of Punjab and Another, (2008) 16 SCC 417, he submitted that non-compliance of the Standing Order entitles him for bail.

7. Lastly, learned counsel submitted that as per the inventory report prepared by the Investigating Officer at the time of seizure, weight of the contraband was found to be 66.300 kgs; but, when its inventory was prepared in the presence of the Magistrate for certification, substantial reduction in its weight was noticed. He submitted that it suggests that the recovered contraband was subjected to tempering by the Investigating Agency and hence, it cannot be held that the contraband recover