IMPORTANT POINT
The court established that non-compliance with mandatory provisions of the NDPS Act can render evidence inadmissible, and that prolonged detention without trial can justify the grant of bail despite the serious nature of the charges.

ORDER :

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

2. Briefly stated the facts of the case are that on 26.05.2021 SHO, Police Station Sangaria, District Hanumangarh received a secret information made search of the house of the petitioner and on 27.05.2021 19 plastic bags of poppy husk were recovered. The total weight of these bags was 380 Kg. The seizing officer took samples from the recovered contraband and marked them as A-1 to A-19 and sent the same to the FSL for its chemical examination. Whereafter the accused was taken into custody. After usual investigation, a case under Sections 8/15 & 29 of the NDPS Act has been filed.

3. 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 27.05.2021 and since then he is behind the bars. Now, more than three years have elapsed and till now, out of total sixteen witnesses, only two witnesses have been examined and 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.

4. 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.

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

6. Perusal of the material available on record revealing that on 26.05.2021, SHO, Police Station Sangaria made a search upon the house of the petitioner and on 27.05.2021 recovered 19 plastic bags of poppy husk from there. The total weight of these bags was 380 kg. He took samples at the spot and marked as ‘A-1’ to 'A-19' and send the same to the FSL for detection of morphine and its derivatives.

7. It is an admitted situation that the samples which were taken by the Seizing Officer from the spot were sent to the FSL for chemical examination, which were not taken in the presence of the Magistrate. Apparently, the guidelines issued by the Government vide Standings Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act have not been complied with. Admittedly, no samples were taken in the presence of Magistrate whereas the samples taken at the spot were sent to the FSL.

8. In this view of the matter it can be said that the samples sent to the FSL and the report of the FSL in this regard is nothing but is a waste paper as propounded in a judgment titled as Mohammed Khalid and Another Vs. State of Telangana passed by Hon’ble the Supreme Court in Criminal Appeal No. 1610 of 2023 dated 01.03.2024, it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52-A of NDPS Act, thus, the FSL was considered to be waste and was not considered worthy of being read in evidence on the basis of this inter-alia other aspects, Hon’ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reproduced as under:

“22. Admittedly, no proceedings under Section 52A of the NDP