IMPORTANT POINT
Non-compliance with procedural requirements under the NDPS Act can undermine the prosecution's case and justify the grant of bail.

ORDER :

Farjand Ali, J.

1. The jurisdiction of this court has been invoked by way of filing an instant third 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 and second bail applications filed on behalf of the petitioner came to be dismissed as not pressed by this Court vide order dated 12.01.2024 & 14.02.2024 passed in SBCRLMB No.13017/2023 & 1296/2024. While rejecting the second bail application, a liberty was afforded to the petitioner to renew the prayer for bail after the statement of Seizing Officer is recorded but till now not a single witness has been examined in the trial. 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.

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. Perusal of the record revealing that the petitioner is behind the bars for more than one year. It is the case of the prosecution that on 22.08.2023 SHO Dungla alongwith his team during patrolling found a Swift Desire Car bearing registration No.RJ27 TA8371 lying in an abandoned condition. Upon suspicion, search was conducted and four bags of poppy husk weighing 60.100 Kg and an AADHAR Card of the petitioner from the dickey of dashboard were recovered. On the basis of Engine and Chasis number present petitioner has been booked as an accused and a case under Section 8/18 of the NPDS Act got registered against him.

7. After search and seizure, the articles which were seized at the spot were marked and the same were sent to the FSL for its examination. No inventory was prepared and verified in the presence of the Magistrate as per the provision of Section 52A of the NDPS Act and the samples so verified were not sent for scientific investigation. As per the mandate of law, the samples taken in the presence of a Magistrate should be sent to the Forensic Laboratory. Not making inventory in accordance with the guidelines issued by the Government issued 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 won’t be possible to be made since the report of FSL regarding samples taken at the spot by the Seizing Officer would not be sufficient.

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 sha