The court ruled that the conditions for bail under Section 37 of the NDPS Act were not satisfied due to the serious nature of the offences and the substantial quantity of contraband involved.

ORDER :

Mr. Kuldeep Mathur, J. - Corrected on 01.05.2024

These applications for regular bail under Section 439 Cr.P.C. have been filed by the petitioners who have been arrested in connection with F.I.R. No.02/2021, registered at Police Station CBN, Neemuch, for offences under Sections 8/15 and 25 of the NDPS Act.

2. Heard learned counsel for the petitioners and learned Spl. Public Prosecutor. Perused the material available on record.

3. Learned counsel for the petitioners submitted that recovery of contraband (poppy husk/straw) weighing 2939.800 kgs. was made by a team of CNB from a truck bearing registration No. RJ- 19-GC-2999. Learned counsel submitted that as per prosecution, at the time when above mentioned truck was intercepted by a team of CNB, the petitioner-Panna Ram was found sitting on the wheel of the offending vehicle whereas the petitioner-Dhannaram was sitting besides him. The petitioner-Devendra Kumar Siyag is the registered owner of the offending vehicle and it is alleged that the contraband was loaded in the vehicle under his instructions.

4. Learned counsel submitted that the sampling procedure undertaken in the present case by the Seizure Officer was not in conformity with the Standing Instructions No.1/88, dated 15.03.1988 issued by Narcotics Control Bureau, New Delhi.

5. Drawing attention of the Court towards the challan papers and the statements of the Seizure Officer (PW.7) recorded before the competent criminal court, learned counsel submitted that the contraband was recovered from 134 black coloured plastic bags and 8 white coloured sacks. Representative samples were collected from each bag/sack by mixing them for further investigation and sending it for FSL examination. It was vehemently submitted that since the recovered contraband was mixed and samples were drawn thereof for being send for testing, it cannot be said with certainty that each sack/plastic bag contained alleged contraband or not. In this regard, learned counsel placed reliance on the judgment rendered by a co-ordinate Bench of this Court in the case of Netram v. State of Rajasthan reported in 2014 (1) Cri.LR (Raj) 163.

6. Learned counsel further submitted that the procedure adopted by the Seizure Officer was illegal inasmuch as no colour test using U.N. Kit was conducted before mixing the samples drawn from different bags/sacks. Learned counsel argued that the procedure of sampling adopted by the Seizure Officer is totally void and therefore, the petitioners deserve to be enlarged on bail.

7. It was fervently contended that co-accused- Dhashrath Singh who was arrested on the basis of disclosure statements of the petitioner-Devendra Kumar Siyag, has already been acquitted by the Court of Special Judge, NDPS Cases, Pratapgarh, Rajasthan (Special Session Case No.17/2023) after holding full fledged trial against him.

8. Lastly, learned counsel submitted that no case of similar nature is pending against the petitioners. The petitioners are in judicial custody for more than two years and the trial of the case is likely to take sufficiently long time. On the strength of submissions advanced by learned counsel, he sought indulgence of this Court to enlarge the petitioners on bail.

9. Per contra, learned Spl. Public Prosecutor has vehemently opposed the bail applications and submitted that huge quantity of contraband (poppy husk/straw) had been recovered from the conscious/constructive possession of the petitioners-Dhanna Ram and Panna Ram. Sufficient material is available on record to indicate that the contraband in the offending vehicle was being transported with due knowledge of the petitioner-Devendra Kumar Siyag, who is the registered owner of the offending vehicle. Learned counsel vehemently submitted that sampling procedure undertaken by the Seizure Officer was in conformity with the Standing Instructions/Rules. It was submitted that even otherwise with the fact whether the procedure laid down under NDPS Act or Standing Orders was complied with or