IMPORTANT POINT
The court established that non-compliance with mandatory provisions of the NDPS Act, particularly regarding the sampling process, can render the prosecution's case weak and justify the grant of bail, even in serious offenses.

ORDER :

FARJAND ALI, J.

1. The jurisdiction of this court has been invoked by way of filing the second bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

2. His first bail application being SBCRLMB No.2865/2023 came to be dismissed as not pressed by this Court vide order dated 14.02.2024 but a liberty was afforded to the petitioner to file fresh bail application after the statement of Seizing Officer is recorded.

3. Briefly stated the facts of the case are that on 09.08.2022 Hamir Singh, SHO, Police Station Siriyari, District Pali received a secret information regarding illegal transportation of the contraband. He along with his team during nakabandi tried to stop an Ertiga Car bearing registration No.RJ15 UA2504 and the driver of the vehicle tried to escape his good from the spot but was apprehended, who disclosed his name as Hem Singh. Upon search, four plastic bags of poppy husk weighing 85 kg were recovered. Thereafter, the petitioner was arrested and sent to the judicial custody. The Seizing Officer took samples at the spot and marked them whereafter sent the same to the FSL for its chemical examination. After usual investigation, a case under Section 8/15 of the NDPS Act has been registered against the petitioner.

4. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises. He further submits that the accused was taken into custody on 09.08.2022 and since then he is behind the bars. Now, one and half years have elapsed but the trial is not going to be culminated and still it seems that a further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail.

5. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

6. Have heard and considered the submissions made by both the parties, Investigating Officer and have perused the challan papers and the other material available on record.

7. Perusal of the record revealing that on eight occasions Seizing Officer was called by the trial Court but he did not turn up for recording his statement. If the Investigator/Prosecutor who prepared the seizure memo does not have interest to prosecute the case and keeping trust upon him an accused has been denied bail and is being kept under confinement for a longer period; for the sole reason that an officer who prepared Seizure Memo does not appear in the Court to substantiate charge or to verify or support the Seizure Memo made by him, in that situation the detention of an accused would be justifiable is a serious question to ponder. If an accused denied grant of bail on the basis of the allegation of a Seizing Officer then it becomes imperative upon the said officer to honor the process of law issued against him for recording his statement before the trial Court so that his statement can be recorded and he can be tested through cross examination or re-examination. Here, in the present case, summon and warrants were issued against the Seizing Officer on more than half dozen occasions for the purpose of recording his statement before the trial Court but surprisingly, the officer has not turned up for doing so and on the other hand, it can be assumed th