ORDER :

1. The petitioner, who is under arrest for committing the offence under Sections 8/18 & 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’) in relation to the FIR No. 528/2011 registered at Police Station Nimbahera, District Chittorgarh has come before this Court under Section 439 of the Cr.P.C. seeking release on bail.

2. The first bail application submitted on behalf of the petitioner was dismissed by this Court on 21.06.2023 while trial against the petitioner was pending at the stage of framing of charges. The petitioner has not produced any document revealing that the charges against him have been framed or the trial has been commenced in relation to him. Therefore, without there being any change of progress of trial, this second bail application has been moved.

3. It is alleged against the petitioner that on 02.09.2011, petitioner along with Nirbhaya Singh and Ravi Kumar was apprehended by the police during a barricading at about 11.00 p.m. near Jaliya Check-post in the jurisdiction of Police Station Kotwali-Nimbahera, District Chittorgarh. On search of a car being driven by the petitioner, total 68.500 Kgs. of opium and 200 gms. of smack was recovered from the car.

4. Shri Vikas Balia, learned Senior counsel representing the petitioner vehemently urged that a false case has been foisted against the petitioner and allegations so leveled by the police against the petitioner are baseless since petitioner was just a driver of the vehicle and had no knowledge of any contraband drug being hidden in the vehicle involved. He further contended that the samples for chemical analysis from the seized contraband drug were taken at the spot in the absence of a Magistrate in derogation of the provisions of Section 52A of the Act and such irregularities malign the entire proceedings. In support of such arguments reliance has been placed upon judgment pronounced in the case of Union of India vs. Mohan Lal, 2016 (3) SCC 379.

5. It is next contended that the procedure that was followed by the Seizure Officer at the time of search and seizure is also contrary to Section 50 of the Act since a joint notice under Section 50 of the Act came to be issued to three accused and the same is contrary to the law laid down by the Hon’ble Apex Court in the case of State of Rajasthan vs. Parmanand and Others, (2014) 5 SCC 345.

6. It is further argued that there was delay in sending the samples of alleged contraband to the FSL and after delay of more than 72 hours, samples were send, whereas as per Clause 13 of Standing Order No. 01/88 issued by the Narcotics Control Bureau, the samples were required to be sent to FSL for testing within 72 hours of seizure to maintain its reliability, therefore, the possibility of tempering with the samples cannot be ruled out. Concluding the submissions, he asserted that petitioner may be released on bail. Reliance was also placed on the following judgments in support of his arguments:

(i) Simranjit Singh vs. State of Punjab, 2023 Live Law (SC) 570 decided on 09.05.2023

(ii) Ladhu Ram vs. State of Rajasthan, S.B. Crl. M.B. No. 8738/2023 decided on 02.11.2023

(iii) Kailash Siyak vs. State of Rajasthan, S.B. Crl. M.B. No. 2255/2018 decided on 25.04.2018

7. Whereas, learned Public Prosecutor would submit that the procedure prescribed under Section 50 and 52A of the NDPS Act were adhered to; that the recovery of contraband was effected from a vehicle in transit and thus, provisions of Section 50 of the Act would have no application because it is not a case involving recovery of contraband in a personal search.

8. It is further argued that petitioner is involved in a drug peddling and contraband drug of huge commercial quantity was recovered from him, therefore, the Bar as contained in Section 37 of the Act is attracted.

9. It is further contended that the petitioner is habitual offender and he is involved in four more cases of drug peddling since 2017, therefore, given his past conduct, he is likel