ORDER :

1. Arrested in furtherance of FIR No. 26/2022, registered at Police Station Gangrar, District Chittorgarh, petitioner has filed this application under section 439 Cr.P.C. for releasing him on bail. The petitioner is charged for offences punishable under Section 8/15 of the NDPS Act.

2. The first application for bail was disposed of without considering the merits of the case since that was not pressed by the petitioner.

3. The facts in a nutshell are that on 29.01.2022 at about 12.30 P.M. in pursuance to a secret information, the compound attached with house of Narayanlal was searched by Ratan Singh, SHO, Gangrar, District Chittorgarh. A swift car and a tractor without registration number were found parked therein and petitioner Narayanlal was found sitting on the driver seat of the tractor and co-accused Rajulal on the mudguard of the tractor. After due formalities, total 348 Kg. of poppy straw were recovered from 23 plastic bags in the trolley of the tractor.

4. To begin at the beginning Shri Bhagirath Ray Bishnoi, learned counsel representing petitioner has fervently argued that there is non compliance of provisions of section 50 of the NDPS Act. Since notice under section 50 of the Act issued to the petitioner does not mention either any of option or about the right of the petitioner. It only mentions about the necessity. Seizure Officer has not complied with the mandatory requirements of section 50 of the NDPS Act as no option for search, containing rights of petitioner, was given to the petitioner. Search has been conducted without complying with the provisions of section 50 of the NDPS Act, which renders the seizure illegal. While inviting the attention of the Court towards notice under section 50 of the Act issued to the petitioner it is contended that no option at all was given to the petitioner as contemplated under section 50 of the Act.

5. It is further argued that the samples for chemical analysis from seized drug were taken in the absence of a Magistrate in derogation of provisions of Section 52A of the NDPS Act and such irregularities malign the entire proceedings; that entire allegations so levelled by the Police against the petitioner is totally false and baseless; that there is no concrete evidence to show direct nexus between the petitioner and the alleged contraband drug, rather case of the prosecution is based on surmises and conjectures; that co-accused Parsu Ram S/o Magni Ram Suthar (Bail Application No. 12684/2023, decided on 19.10.2023) and Suresh S/o Late Ratan Lal Jat (Bail Application No. 10687/2022, decided on 18.01.2023) has already been enlarged on bail and the petitioner too deserves the same indulgence. Therefore, considering the facts and circumstances the petitioner may be released on bail.

6. Learned counsel for the petitioner has placed reliance on the Judgment passed in Sanjeev and Others vs. State of Himachal Pradesh, 2022 Live Law (SC) 267.

7. Per contra, learned Public Prosecutor submits that seizure and sampling was in consonance with the procedure and the shortcomings pointed out by the learned counsel for the petitioner cannot be considered at this stage and are to be decided after trial only. It is further argued that the procedure prescribed under Sections 50 and 52A of the NDPS Act were substantially adhered to.

8. It is further argued by learned Public Prosecutor that the tractor involved was in the physical possession of the petitioner which was purchased by him through an agreement to sale from registered owner and being the agreement holder, he was found sitting on the tractor accidentally, which connects direct nexus between the contraband seized and the petitioner, proving alleged contraband in the physical possession of the petitioner. In respect of infirmities in notice issued under Section 50 of the Act to the petitioner, learned Public Prosecutor pointed out that provisions of section 50 of the NDPS Act would have no application in the present case because it is not a cas