IMPORTANT POINT
The court established that procedural compliance under the NDPS Act is crucial, and failure to adhere to such provisions can lead to the grant of bail even in serious cases.

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 disposed of by this Court vide order dated 21.12.2022 passed in SBCRLMB No.15753/2022 with the liberty of file afresh after recording the statement of Seizing Officer. Now the statement of Seizing Officer is recorded. 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 27.02.2022. 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. Vide order dated 22.08.2024, this Court directed to summon a report from the trial Court regarding present status of the trial. In compliance of the said order, the letter No.441 dated 30.08.2024 has been received from the Court of Additional District & Sessions Judge, Taranagar, Churu wherein it has been mentioned that out of total 15 witnesses only ten witnesses have examined and few are yet to be examined.

7. It is revealing from the record that on 27.02.2022, the SHO Govindram along with his team made Nakabandi at NH 52 Hadiyal and intercepted a Truck bearing registration No.PB11 BA7795. The driver of the said vehicle was interrogated, who disclosed his name to be Yashwant and the person sitting by his side stated his name as Arjun. Whereafter search was conducted and 5 plastic bags containing poppy husk were recovered from the said vehicle. The weight of these bags was 141.5 kg. The petitioner and co-accused were arrested; the Investigating Officer took samples from the recovered articles, marked them and sent the same to the FSL for its chemical examination. After usual investigation, a case under Sections 8/15, 25 & 29 of the NDPS Act has been filed in the Court concerned.

8. Perusal of the statement of P.W. 1 Govind Ram and other prosecution witnesses it is revealing that the samples were not taken in his presence should be sent to the FSL for detection of contraband nor any of his superior officer had taught him about it. 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.

9. In this view of the matter it can be said that the samples sent to the FSL and the report of the FSL in this regard is nothing but is a waste paper as propounded in a judgment titled as Mohammed Khalid and another Vs. The State of Telangana passed by Hon’ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024, it was held that since no proceedings were undertaken for preparing of i