IMPORTANT POINT
Procedural compliance under the NDPS Act is crucial for the admissibility of evidence, and failure to adhere to these provisions can lead to the grant of bail.

ORDER :

1. The jurisdiction of this court has been invoked by way of filing an instant 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 petitioner came to be dismissed of by this Court vide order dated 06.05.2022 passed in SBCRLMB No.5966/2022. 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. The petitioner is behind the bars since 22.07.2021. 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.

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 considered the submissions made by both the parties and have perused the material available on record.

6. It is revealing from the record that on 22.07.2021, the acting SHO Ram Singh, Police Station Old City, Sri Gangangar along with his team while on patrolling duty saw that a boy was carrying a pittu bag in his hand and upon seeing the police party tried to escape from the spot. On suspicion, he was apprehended and when interrogated he disclosed his name to be Sanjay @ Sanju Swami. Whereafter upon search, 6 packets containing 3000 (1 Kg 161 grams in weight) Tramadol prolonged release Tablets IP TRAMWEL SR 100 were recovered from upper pocket of the bag and from the another pocket, 35 plastic bottles of Chlorphinarmine Maleate & Codeine Phospate Syrup weighing 4.295 Kg were recovered. On the basis of the said recovery, the petitioner was arrested; the Investigating Officer took samples from the recovered articles, marked them and sent the same to the FSL for its chemical examination.

7. It is an admitted situation that the samples which were taken by the Seizing Officer from the spot on 22.07.2021 were sent to the FSL for chemical examination but the same were not taken in the presence of the Magistrate Not making inventory in accordance with 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 is a serious question which if decided in favour of the accused, then his conviction cannot be made. When there appears reasonable ground to presume that certain infirmity or legal defect would be fatal to the prosecution still not exercising power of granting bail would mean not honoring the guarantee of the Constitution given to every individual regarding protection of his liberty.

8. It would be worthwhile to mention here that by virtue of powers given under Section 52-A r.w. Section 76 of the NDPS Act, the Central Govt. Department of Finance issued a Gazette Notification dated 23.12.2022 regarding classification, seizing, sealing, storing, taking samples of the contraband etc. called as Narcotic Drugs and Psychotropic Substances (seizure, search, sampling and disposal), Rules 2022 (hereinafter referred as ‘the Rules of 2022’). The said Rule came into force from 23.12.2022. It would be relevant to reproduce certain provisions, which are as under:-

3. Classification of seized material. –

(1) The narcotic drugs, psychotropic substances and controlled substances seized under the Act shall be classified based on physical properties and results of the drug detection kit, if any, and shall be weighed se