IMPORTANT POINT
The court established that non-compliance with mandatory procedural requirements under the NDPS Act can significantly undermine the prosecution's case, and prolonged detention without trial can justify the granting of bail despite statutory restrictions.

ORDER :

Rajendra Prakash Soni, J.

1. Arrested in furtherance of FIR No.VIII(IO)10/NCB/JZU/2019, registered at Police Station NCB Jodhpur Unit, District Jodhpur, petitioner has filed this application under Section 439 Cr.P.C. for releasing him on bail. The petitioner is charged for offences punishable under sections 8/15, 8/18, 8/25 & 8/29 of the Narcotic Drugs and Psychotropic Substances Act 1985.

2. The first application for bail was disposed of without considering the merits of the case since it was not pressed by the petitioner, while recording of statement of seizure officer and investigation officer were still pending. Now post recording of statements, this second bail application has been moved.

3. I have appreciated the submissions advanced by the learned defence counsel and learned Public Prosecutor and have carefully perused the material available on record.

4. Learned Public Prosecutor for the State has strongly objected the different submissions made by learned counsel for the applicant and submitted that 215.100 Kgs. of contraband poppy straw and 28.920 Kgs. of contraband opium recovered from the applicant falls within the ambit of commercial quantity and the bar as contained in Section 37 of the NDPS Act is attracted; Investigating Officer had collected overwhelming evidence in the case which would prima-facie point towards the guilt of the accused; Keeping in view the gravity of offence alleged to have been committed by applicant, he does not deserve any leniency rather they need to be dealt with severely; accused do not deserve any sympathy as the petitioner is a drug peddler. He thus, craves rejection of the applicants’ bail application.

5. I have given my anxious consideration to the rival submissions with reference to material placed before me.

6. On perusal of the record and upon consideration of the submissions, it would be clear that admittedly mandatory provisions of Section 52A of the Act has also not been followed as seizure officer Babu Ram Sirohi (PW-1) did not get the proceedings under section 52A conducted in this case before a Magistrate of Gazetted Officer. Hon’ble the Apex Court in the case of Mangi Lal vs. The State of Madhya Pradesh (Criminal Appeal no. 1651 of 2023 decided on 12.07.2023), it has been propounded that:-

“Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non-compliance of Section 52A of the NDPS Act, where a certification of a magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn.”

7. In Mohammed Khalid Vs. The State of Telangana, Criminal Appeal No. 1610 of 2023 (SC) Decided on 01.03.2024 Hon’ble the Apex Court has ruled that:-

22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the seizure Officer for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report is nothing but a waste paper and cannot be read in evidence.

8. Further, it is to be noticed that applicant has been in custody for the last almost 5 years (59 months) and during this period statements of only six witnesses have been recorded in the trial, which are of seizure officer Babu Ram Sirohi, constable Mukesh Kumar Saini, constable Gopal Ram Meena, Ranjeet Kumar Barnwal and investigating officer Manoj Souguna. Despite the specific order of this court, the prosecution has not produced remaining witnesses.

9. In a recent order dated 13.07.2023 passed by Hon’ble the Supreme Court in the case of Rabi Prakash vs. The State of O