IMPORTANT POINT
Procedural compliance in searches under the NDPS Act is crucial; failure to inform the accused of their rights can invalidate the search and affect the prosecution's case.

ORDER :

1. Arrested in furtherance of FIR No.242/2023, registered at Police Station Siriyari, District Pali, petitioner has filed this application under Section 439 Cr.P.C. (Section 483 of the BNSS, 2023) for releasing him on bail. The petitioner is charged for offences punishable under Section 8/18 of the NDPS Act.

2. Earlier, applicant made an endeavor for seeking bail by way of filing first bail application which was disposed of without considering the merits of the case since it was not pressed. Now post recording of statement of seizure officer, this second bail application has been moved.

3. The accusation against the petitioner-accused is that on 19.10.2023, during a police blockade, a public transport bus bearing number RJ-22-PA-4139 of Rajasthan Roadways was checked and 4.530 kgs. of contraband opium was recovered from a bag in the possession of the petitioner, who was traveling on the bus.

4. Learned counsel representing petitioner has fervently argued that after filing of charge sheet, statement of Seizure Officer Mahipal Singh (PW-1) has already been recorded during the trial. He has drawn the attention of the Court to the statement made during the cross-examination of this witness and argued that in the present matter there is no compliance of provisions of Section 50 and 52A of Narcotic Drugs and Psychotropic Substances Act, 1985. It is further argued that petitioner is innocent person and a false case has been foisted against him. With aforesaid submissions, it was prayed that the present petition be allowed and petitioner may be enlarged on bail.

5. Learned Public Prosecutor for the State has strongly objected the different submissions made by learned counsel for the applicant and submitted that 4.530 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. He further submits that the seizure and sampling was in consonance with the procedure and the shortcomings pointed out by the learned counsel for the petitioner cannot be considered at this stage and are to be decided after trial only. Therefore, petitioner does not deserve to be released on bail.

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

7. On perusal of the record and upon consideration of the submissions, it would be clear that statement of Seizure Officer Mahipal Singh (PW-1) has already been recorded during the trial. Section 52A (2) and (3) of NDPS Act provides as under-

(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of—

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the