IMPORTANT POINT
The court established that non-compliance with mandatory provisions of the NDPS Act can invalidate evidence, and that the interpretation of bail conditions under Section 37 should not preclude the possibility of granting bail, especially in cases of prolonged detention without trial.

ORDER :

(Farjand Ali, J.) :

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

2. The first bail application of petitioner being SBCRLMB No.15811/2022 was dismissed as not pressed vide order dated 27.08.2021 Hence, the instant bail applications.

3. Briefly stated the facts of the case are that on 18.09.2020 SHO Harish Sankha submitted a Parcha Kayami to the effect that upon during nakabandi he alongwith his team intercepted a White TAVERA Car being registration No.RJ23-TA-1060 whereupon the driver of the vehicle Lobhichand and accused Ramzan were tried to escape but apprehended. They were interrogated by the SHO and they disclosed that the vehicle was being driven by Lobhichand whereas the another person sitting by the side of the driver was Ramzan. During search of the vehicle, poppy husk weighing total 10 plastic bags were recovered from their possession. Whereafter the accused were taken into custody. The Seizing Officer took samples at the spot and marked them as ^d&1^ To ^d&10^ from the recovered contraband and 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 filed.

4. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against them 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 18.09.2020 and since then he is behind the bars. Now, more than three 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 and have perused the challan papers and the other material available on record.

7. Perusal of the material available on record revealing that on 18.09.2020 SHO Harish Sankha and his team intercepted a vehicle and recovered 10 plastic bags from it and driver of the vehicle Lobhichand and Ramzan were apprehended. The Seizing Officer took samples at the spot and marked them as ^d&1^ To ^d&10^ from the recovered contraband and sent the same to the FSL for its chemical examination.

8. It is an admitted situation that the samples which were taken by the Seizing Officer from the spot on 18.09.2020, 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.

9. 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. The State of Telangana passed by Hon’ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024, it was held that since n