IMPORTANT POINT
The court ruled that non-compliance with mandatory provisions of the NDPS Act can lead to bail being granted despite statutory restrictions.

ORDER :

(Farjand Ali, J.)

1. The jurisdiction of this Court has been invoked by way of filing an instant third bail applications under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below:

2. The previous two bail applications has been rejected by this Court. The first bail application was dismissed vide order dated 24.08.2023 passed in SBCRLMB No.9590/2023 and SBCRLMB No.4542/2023 with liberty to file afresh after statement of Seizing Officer. The second bail application of petitioners came to be disposed of by this Court vide order dated 09.04.2024 passed in SBCRLMB No.2389/2024 and SBCRLMB No.1414/2024 with liberty to renew the prayer for bail in the month of July, 2024 with better particulars. Now, the statement of the Seizing Officer has been completed as PW-2. Hence, the instant third bail application.

3. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and their incarceration is not warranted. If the seizure of the contraband is not made as per the legal provision then the embargo contained under Section 37 of the NDPS Act is not applicable. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioners and they have been made an accused based on conjectures and surmises.

4. Contrary to the submissions of learned counsel for the petitioners, learned Additional Government Advocate 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. The vehicle was intercepted on 27.11.2021. The police team of Police Station Sadar Chittorgarh seized the vehicle (Eicher Truck) bearing No.RJ-09-GD-0445 in which 487 kg 600 gm poppy husk was found. The contraband was seized. They were arrested on 27.11.2021 and since then they are in judicial custody. There are total 25 witnesses, out of which 6 has been examined till now and 3 years have been elapsed, thus, this Court feel persuaded to hear the bail application on merits.

7. Prima facie, it is revealing that the seizure had not been made in accordance with the provision contained under Section 52-A of the NDPS Act and the standing order Nos.1/1988 & 1/1989 issued by the Government of India. The samples were taken by Seizing Officer at the spot whilst as per the provision, the samples were supposed to be taken in the presence of a Magistrate while making inventory. Admittedly, the samples taken at the spot were sent to the FSL and no samples were collected during inventory before a Magistrate. 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. There is a blatant non-compliance of Section 52-A.

8. In a recent 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.