ORDER :

1. Through instant petition, accused has come before this Court for grant of bail under section 439 of the Cr.P.C. in connection with crime registered pursuant to Case No. 1/2022 CBN, Nimach (Madhya Pradesh) in respect of offences punishable under Sections 8/15, 8/18 and 8/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2. Earlier, petitioner made endeavor for seeking bail by way of filing first bail application but the same was dismissed as withdrawn with liberty to file fresh after recording of the statement of the seizure officer.

3. Before delving upon questions of bail, it will be apt to lay factual canvass which unfolds that on 10.01.2022 at 20.40 hours, residential house of petitioner Balkishan situated in Khempura Basti, Village Kanera in tehsil Nimbahera was raided along with his team by the Purshotam Meena, inspector of CBN Neemach (M.P.). When team reached to the house, two persons managed to fled away through the roof of the house. After following due procedure, a pickup vehicle No. RJ-27-GC-5765 which was found parked in the compound, was searched and recovery of 1108.200 Kg. of poppy straw and 650 grams of opium was made from the vehicle.

4. To begin at the beginning Shri Ravindra Kumar Charan, learned counsel representing petitioner has fervently argued that search was conducted between sunset and sunrise without complying with the provisions of Section 42 of the NDPS Act; that there was non-compliance of mandatory procedure of seizure and sampling, which prima facie renders the seizure illegal. It is further argued that the samples for chemical analysis from seized drug were taken on the spot of recovery itself and in the absence of a Magistrate in derogation of provisions of Section 52A of the NDPS Act and such irregularities malign the entire proceedings.

5. While inviting the attention of the Court towards cross-examinations conducted from the seizure officer Purshottam Meena (PW-1), it is contended that he has admitted the fact that no evidence whatsoever was collected regarding the title or ownership or actual physical possession of the premises in question during the investigation. Even no documentary evidence was collected in respect of the premises, wherein the pickup vehicle was found parked.

6. It is also argued that neither the petitioner was present on the spot at the time of recovery and no member of raid party even knew him before.

7. It is further argued that any of family members of petitioner were also not found residing in the house or compound, therefore petitioner has been implicated in the present case merely on the basis of conjectures and surmises; that petitioner is innocent person and a false case has been foisted against him; that nothing has been recovered from possession of the petitioner; that there is no evidence worth the name on record to connect the petitioner with the alleged crime; that there is no concrete evidence to show direct nexus between the petitioner and the alleged contraband drug. With the aforesaid submissions, it was prayed that the present petition be allowed and petitioner may be enlarged on bail.

8. Learned counsel for the petitioner has further argued that there is infirmity in drawing samples from the contraband and proper procedure has not been followed by the seizure officer while drawing mixed samples of drug recovered, therefore mixed samples which were taken out cannot be treated as representative of all the contraband sized from the petitioner.

9. Learned counsel for the petitioner has placed reliance on the judgment rendered by Hon’ble Supreme Court in the case of State of Rajasthan vs. Jag Raj Singh alias Hansa, 2016 Cri. L.J. 3336.

10. Per contra, learned Public Prosecutor submits that the 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 pre