Point of Law : When the recovered tablets are of identical size and weight with identical marking and batch numbers, they can be considered as one unit and thus, one representative sample out of one box having same weight and quantity of tablets would be sufficient.

ORDER :

1. This second application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No. 23/2020, registered at Police Station New Mandi Gharsana, District Sri Ganganagar for the offence under Section 8/21, 25 NDPS Act.

2. The first application for bail was dismissed as not pressed vide order 04.09.2020.

3. Learned counsel for the petitioner submitted that during Nakabandi on 02.02.2020, the present petitioner along with coaccused Jaskaran Singh was intercepted and from a white plastic bag carried by them, total 25 boxes of NrxTramadol Hydrochloride Tablets 100mg Trio-SR were recovered. Each box contained 25 strips and as such the number of total strips recovered from 25 boxes, comes to 625 strips. Further, each strip (10 tablets) weighed 4.05 gms. thus, the total weight 625 x 4.05 = 2531.25 gms. In furtherance of the aforesaid recovery of contraband, FIR against petitioner for the offences under Sections 8/21, 25 NDPS Act was lodged on 03.02.2020. The challan against the petitioner has been filed on 27.07.2020 and charges have been framed on 09.03.2021. Learned counsel for the petitioner submitted that out of 27 prosecution witnesses as on 10.11.2022, only 2 prosecution witnesses including Seizure Officer (PW-2) has been examined before the competent criminal court. Learned counsel further submitted that the petitioner has been falsely implicated in the case and entire investigation has been conducted in violation of the various provisions of NDPS Act so also Standing Orders, issued by Government of NDPS being Instruction No. 1/89 dated 13.06.1989. Drawing attention of the court towards statement of Seizure Officer (PW-2), learned counsel submitted that out of total 25 boxes alleged to be recovered from the petitioner, a sample of only 1 strip from 1 box was taken and then sent for FSL. Learned counsel submitted that since the samples were not collected in an accurate manner, there is possibility of there being no contraband in any one or more boxes cannot be ruled out.

4. Learned counsel submitted that in the facts and circumstances of the case, the embargo contained in Section 37 of NDPS Act is not attracted. Reliance was placed on orders of coordinate Bench of this Court passed in the case of Prabhu vs. State of Rajasthan, S.B. CRL MB No. 1141/2023, decided on 06.04.2023, Ramchandra vs. State of Rajasthan, S.B. CRL MB No. 1162/2022, decided on 27.05.2022 and also on the judgment rendered by this Court in the case of Netram vs. State of Rajasthan, S.B. Criminal Appeal No. 673/2008, decided on 18.10.2013.

5. Alternatively, learned counsel for the petitioner submitted that the petitioner is facing incarceration since 02.02.2020. Learned counsel further submitted that out of 27 prosecution witnesses, only 2 witnesses have been examined as on 10.11.2022. In view of aforesaid, it can safely be stated that the trial is not likely to be completed in near future and thus, looking to the period of custody already undergone by the petitioner, he may be enlarged on bail.

6. Per contra, learned Public Prosecutor opposed the bail application and submitted that no expiry date was mentioned on the boxes recovered from the petitioner and all the boxes had same batch number. Learned Public Prosecutor submitted that the contraband TRIO-SR was recovered from the conscious possession of the petitioner and co-accused and thus, no fault can be found in the action of the Seizure Officer. Learned Public Prosecutor prayed that the present bail application may be rejected.

7. Heard.

8. The relevant portion of the Standing Order No. 1/89 dated 13.06.1989, issued by Government of India under Section 52A of NDPS Act, reliance whereupon has been placed by learned counsel for the petitioner is reproduced herein-below:

“2.1 All drugs shall be classified, carefully, weighed ad sampled on the spot of seizure.

2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from