ORDER :

1. The instant bail application under Section 439 Cr.P.C. has been filed on behalf of the petitioner who is in custody in connection with FIR No.61/2022 registered at Police Station Surajgarh, District Jhunjhunu for offence under Section 8/20 of the NDPS Act.

2. As per the prosecution case, on 16.02.2022, Mukesh Kumar, SI, SHO Police Station Surajgarh along with other police personnel were on patrolling during which, the SHO received a secret information that illegal contraband Ganja has been kept in the house of Ravindra Singh, petitioner herein and he would supply the same to any other person through a vehicle. On the basis of this information, at about 1:40 AM, the police team after making necessary entries in the Roznamcha, reached at the house of the petitioner where two persons were seen, loading plastic bags in a white color Bolero car. On seeing the police party, they ran away inside the house, of whom, one person somehow managed to escape from the spot. However, the other person was apprehended by the police team who disclosed his name as Ravindra Singh, petitioner herein. The petitioner disclosed that the person who escaped from the spot was Vinod. He was also identified by police personnel. During search, three white colour plastic bags and two white colour plastic bags were found from the car and the house respectively in which some substance was kept in total 44 packets. It is alleged that on the basis of past service experience, it was found that contraband Ganja was kept in these 44 packets. As per prosecution case, the entire contraband Ganja was mixed, which was weighing 115 Kgs. It is stated that two samples of 100 grams each were drawn for testing. Thereafter, the accused petitioner was arrested in connection with the aforesaid recovery and on reaching the police station, formal FIR No.61/2022 was registered for offence under Section 8/20 of NDPS Act.

3. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in this case. Counsel for the petitioner further submits that in the present case, samples were drawn in violation of Standing Order No.1/88 issued by the NCB, New Delhi as the Seizure Officer was required to take separate sample from each bundle. Counsel further submits that the procedure of sampling has to be done in accordance with the directions given by the Apex Court in the case of Gaunter Edwin Kircher vs. State of Goa, Secretariat Panaji, Goa (AIR 1993 SC 1456) decided on 16.03.1993 in which it was clarified that sample has to be taken from each packet. As separate weight of all the packets were not known and sample from each packet was not drawn for testing, it cannot be said with utmost certainty that each packet was containing Ganja and that the quantity of recovered contraband was 115 Kgs.

4. Counsel for the petitioner further submits that provisions of Section 50 of NDPS Act were not properly complied with as no proper option was given to the petitioner. He also argued that mandatory provisions of Section 42 of the NDPS Act has also not been followed as search was made in between sunset and sunrise but no memo of reasons/grounds for his belief was prepared by the seizure officer. Counsel for the petitioner also relied upon the following judgments:-

1. Netram vs. State of Rajasthan, reported in 2014 (1) Cr.L.R. (Raj.) 163

2. State of Rajasthan vs. Parmanand, reported in 2014 (5) SCC 345

3. State of Orissa vs. Laxman Jena, reported in 2009 (16) SCC 332

5. He submits that the petitioner is in custody and trial will take considerable time. He thus, prays that the instant bail application may be accepted and the petitioner may be released on bail.

6. Per contra, learned Public Prosecutor vehemently opposed the bail application on the ground that recovered contraband comes within the definition of commercial quantity and the petitioner has been apprehended at the spot and thus, considering the embargo contained in Section 37 of the NDPS Act, bail should not be gr