Compliance with mandatory provisions of the NDPS Act is crucial, but non-compliance does not automatically preclude bail if the overall circumstances warrant it.

ORDER

Anil Kumar Upman, J. - This Second bail application has been filed under Section 439 Cr.P.C. on behalf of the accused-petitioner who has been arrested in connection with FIR No.34/2023 registered at Police Station Roopangarh, District Ajmer for offences under Sections 8/15 & 8/20 of the NDPS Act.

2. The first bail application (No.9089/2023) was dismissed as withdrawn by this Court vide order dated 28.07.2023 with liberty to file fresh bail application after recording statements of the Seizure Officer and Investigation Officer within a period of three months. Learned counsel for the petitioner submits that the statement of the seizure officer Ayub Khan, the then SHO PS Roopangarh has been recorded at trial and three months have already been lapsed since dismissal of the first bail application and hence, this second application for bail has been filed.

3. It is contended by learned counsel for the petitioner that the accused petitioner has falsely been implicated in this case. He contends that the work of drawing sample was not done in accordance with the provisions of sub-section 2 of Section 52A of the NDPS Act. He argues that the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. However, there is total non-compliance of this provision of law. Counsel places reliance upon the judgments of Hon'ble Supreme Court passed in the cases of (1) Union of India vs Mohanlal & Anr : (2016) 3 SCC 3749 and (2) Mangilal vs State of Madhya Pradesh: 2023 SCC online SC 862.

4. Counsel for the petitioner has also argued that mandatory provisions of Section 42 of the NDPS Act has also not been followed as search was made in between sunset and sunrise but no memo of reasons/grounds for his belief was prepared by the seizure officer. The Seizure Officer also did not reduce in writing and prepare any separate 'fard' for the secret information received by him from the secret informer. Counsel for the petitioner relied upon the following judgment of Hon'ble Supreme Court in the case of State of Orissa vs. Laxman Jena, reported in (2009) 16 SCC 332.

5. He submits that contraband dodapost weighing 53.400kg was allegedly recovered from the store room of the hotel of the petitioner is at the margin of the commercial quantity. He submits that while measuring the weight of the contraband, the weight of the plastic bag in which the contraband was kept, was also included and thus, it can be presumed that the alleged contraband is below commercial quantity. Only one witness has been examined out of 26 cited witnesses and trial of the case will take considerable time in its conclusion. The petitioner has no criminal antecedents. He thus, prays that the instant application for bail may be accepted and the petitioner may be released on bail.

6. Per contra, learned Public Prosecutor vehemently and fervently opposes the bail application. He submits that contraband dodapost weighing 53.400kg was recovered from the store room of the hotel and petitioner was arrested on the spot and thus, considering the rigour of Section 37 of the NDPS Act, bail should not be granted.

7. I have heard and considered the submissions advanced by counsel for the petitioner as well as learned Public Prosecutor and perused the material available on record.

8. The process of drawing samples has not been done in the presence and under the supervision of the Magistrate, which is in violation of Section 52A of the NDPS Act. Section 37 of the NDPS Act does not create an absolute embargo for grant of bail. Further, while considering an application for grant of bail, it is not required for the Court to record positive finding that the accused is not guilty. The only requirement of law is that the Court would look at the material in a broad manner and reasonably see whether the accused's guilt may be proved. The satisfaction which courts are expected to record i.e, the accused may not