IMPORTANT POINT
Procedural compliance under the NDPS Act is crucial; failure to adhere to sampling and inventory requirements can undermine the prosecution's case and justify bail.

ORDER :

Farjand Ali, J.

1. The jurisdiction of this Court has been invoked by way of filing the instant second application under Section 439 Cr.P.C. 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 disposed of by this Court vide order dated 06.03.2024 passed in SBCRLMB No.10564/2023. 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. He is behind the bars since 15.08.2020. 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. I have considered the submissions made by both the parties and have perused the material available on record.

6. Perusal of the record revealing that on 15.08.2020 SHO Ast Ali PS Pilibanga along with his team while on patrolling duty, upon suspicion intercepted a Scotty bearing registration No.PB03 AZ6820, which was being driven by Manjeet Singh and during search, 550 strips of Clovidol SR 100 containing 5500 tablets (2200 grams in weight); 80 strips of 0.5 Promozolam 800 Tablets (118.4 grams) were recovered from the pittu bag. Total weight of recovered contraband was 2318.4 grams. On the basis of this the petitioner was arrested 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 15.08.2020 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 separately.

(2) If the narcotic drugs, psychotropic substances and controlled substances are found in packages or containers, such packages and containers shall be weighed separately and serially numbered f