IMPORTANT POINT
The court emphasized the importance of adhering to procedural requirements in drug seizure cases, ruling that non-compliance can render evidence inadmissible and affect bail decisions.

ORDER :

(Farjand Ali, J.)

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-petitioners. The requisite details of the matter are tabulated herein below:

2. The first bail application of petitioners came to be disposed of by this Court vide order dated 22.02.2024 passed in SBCRLMB No.467/2024 with 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-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 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. The Truck bearing No.PB-02-BV-9755 was intercepted on 16.05.2023. The police team of Police Station Sadar Chittorgarh seized the vehicle in the presence of driver and cleaner, in which 67 kg poppy husk was found from three plastic bags among plastic bags filled with gram. The contraband was seized. They were arrested on 16.05.2023 and since then they are in judicial custody. 17 months have been elapsed, thus, this Court feel persuaded to hear the bail application on merits.

7. After search and seizure, the petitioners were arrested on 16.05.2023 thereafter the articles which were seized at the spot were marked as ‘A’, ‘B’ and ‘C’. 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 shall be weighed separately.

(2) If the narcotic drugs,