IMPORTANT POINT
The court underscored the necessity of adhering to legal procedures during the seizure of contraband, particularly the requirement for a Magistrate's presence, and established that non-compliance with these provisions can lead to the dismissal of the prosecution's case.

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. The first bail application of the petitioner being SBCRLMB No.2586/2024 came to be dismissed by this Court vide order dated 04.03.2024 but a liberty was granted to the petitioner to renew his prayer for bail after recording the statement of the Seizing Officer. Now, the statement of the Seizing Officer has been recorded. Hence the instant bail application.

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 08.06.2022 and since then he is behind the bars. Now, around two years have lapsed 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.

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, the statements of independent witnesses and the other material available on record. Co-accused Major Singh has already been enlarged on bail by this Court vide order dated 08.05.2024 passed in SBCRLMB No.5457/2024. The relevant part of the said order is being reproduced here under:-

6. What is reflecting from the record that a vehicle was intercepted by the police on 08.06.2022 near Kumpli circle in which certain quantity of contraband was recovered and, therefore, the petitioner and the other person were apprehended at the spot and after usual investigation, charge sheet came to be submitted against them for the above mentioned offences and the trial commenced.

7. A perusal of the statements of independent witnesses reflects that P.W. 1 Ajay Kumar, who happens to be a witness and was projected by the prosecution to verify the recovery from the vehicle but he did not support the story set out by the prosecution and turned hostile.

8. P.W.2 Balvindra Singh is also an independent witness, who was working in his agricultural field situated near crime spot and present at the time of incident. In his on oath statement, he denied from the fact of recovery of contraband.

9. P.W. 3 Deepak was also projected as an independent witness who was present at the crime place; but he turned hostile and didn’t support the story of prosecution.

10. Similar is the statement of P.W. 4 Balveer Singh @ Billa and P.W. 5 Baldev Singh as both have totally denied regarding the fact of recovery of the contraband from the vehicle and did not support the story of the prosecution. P.W. 6 & P.W. 7 Sukhpal Singh and Gurmeet Singh also made the similar recital.

11. All the seven independent witnesses have blatantly denied to give their support to the fact of recovery of contraband made by the police.

12. The Seizing Officer Daula Ram has been examined as P.W. 8. Although, in his examination-in-chief, he narrated the story in the manner in which the incident is shown to have occurred but when he was tested in cross examination, he candidly admitted that the entire memos, seizure, notice