ORDER :

1. The present bail application has been filed under Section 439 Cr.PC. in connection with FIR No.486/2021 registered at Police Station Aravali Vihar, District Alwar for offences under Sections 8/20, 8/25, 8/29 and 8/60 of the NDPS Act and Sections 420, 467, 468, 471 and 34 IPC.

2. According to the prosecution case, on 10.09.2021, a truck bearing No.MP 07 HB 2919, followed by one Brezza Car No.UP 85 BE 9149 were intercepted. There were four persons in the truck. On asking, the driver disclosed his name as Rinku while other three persons disclosed their names as Rakesh Kumar, Pramod Singh, petitioner herein and Lakhan Singh respectively. In search of the truck, a total 383 bundles of contraband, kept in 96 sacks were found. On the basis of service experience, it was found by the seizure officer as well as the other team members that in these bundles, contraband Ganja was kept. On asking, the driver of the Brezza car disclosed his name as Akhilesh Sharma @ Pandit and in search of the said car, two bags containing contraband Ganja weighing 46.7 Kgs were recovered. The contraband kept in 96 bags recovered from the truck were divided in three lots of 40, 40 and 16 kgs respectively. Two samples from each lot, after mixing the entire material from all the bundle were prepared. On the basis of aforesaid recovery, all these persons were arrested and taken into custody and a formal FIR No.486/2021 was registered at the Police Station Aravali Vihar, District Alwar.

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.

4. Counsel for the petitioner further submits that in this matter, samples were deposited in the FSL only on 14.09.2021 while the recovery was made on 10.09.2021, which is also in violation of Standing Order No.1/88 dated 15.03.1988. He further submits that according to the Standing Order No.1/88, samples should be deposited in FSL within 72 hours from the date of seizure. As separate weight of all the bundles were not known and sample from each 383 bundles was not drawn for testing, it cannot be said with utmost certainty that each bundle was containing Ganja and that the quantity of recovered contraband was 2448.250 Kgs. Learned counsel for the petitioner also relied upon the order passed by Coordinate Bench of this Court in Netram Vs. State of Rajasthan (2014 (1) Cr.L.R. (Raj.) 163.

5. It is also argued by counsel for the petitioner that according to the seizure memo, green and golden colour leaf type substance was recovered from the bags and according to the definition of Ganja, same does not fall within the definition of Ganja. He refers to Section 2(14)(i) of the Rajasthan Excise Act, 1950 which is reproduced as under:-

"the leaves, small stalks and flowering or fruiting tops of the hemp plan (Cannabia Sativa) including all forms known as Bhang, Sidhi or Ganja)"

6. Counsel for petitioner submits that in similar circumstances, bail has been granted by the Apex Court in case of Hasubhai Kamabhai Thakor Vs. The State of Gujarat in Special Leave to Appeal (Crl.) No.2523/2023. He thus, prays that the petitioner may be released on bail.

7. Per contra, learned Public Prosecutor vehemently opposed the bail application on the ground that recovered contraband comes within the definition of commercial quantity and thus, considering the embargo contained in Section 37 of the NDPS Act, bail should not be granted.

8. I have considered t