The court ruled that the petitioners were not in conscious possession of contraband and satisfied the conditions for bail under the NDPS Act.

ORDER :

KULDEEP MATHUR, J.

1. These applications for bail under Section 439 Cr.P.C. (483 BNSS) have been filed by the petitioners who have been arrested in connection with F.I.R. No.22/2022, registered at Police Station Rajiyasar, District Sriganganagar, for offences under Sections8/15, 25 & 29 of the NDPS Act.

2. Learned counsel for the petitioners submitted that co- accused Nishan Singh (S.B. Criminal Miscellaneous Bail Application No. 8971/2023) from whose conscious possession contraband (Poppy husk/straw) weighing 69 kg. was recovered has already been enlarged on bail by this Court vide order dated 28.08.2023. Learned counsel further submitted that the petitioners have been implicated in the present case solely on the basis of the disclosure statements of the co-accused Nishan Singh. Lastly, learned counsel for the petitioner submitted that the petitioners are in judicial custody; the petitioners do not have any criminal antecedents; the investigation against the present petitioners has already been completed and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioners.

3. Per Contra, learned Public Prosecutor has vehemently opposed the bail application. However, they were not in a position to refute the fact that the above named co-accused has already been enlarged on bail.

4. Heard learned counsel for the parties at Bar and perused the order dated 28.08.2023 passed by this Court. The order dated28.08.2023 is reproduced hereinbelow for ready reference:-

“This application for bail under Section 439 Cr.P.C.has been filed by the petitioner who has been arrested in connection with F.I.R. No.22/2022, registered at Police Station Rajiyasar, District Sriganganagar, for offences under Sections 8/15, 25 & 29 of the NDPS Act.

Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

Learned counsel for the petitioner invited Court’s attention towards the statements of Seizure Officer namely Pawan Kumar (P.W.-1) recorded before competent criminal court on 17.06.2003 and submitted that the Seizure Officer (P.W.-1) had recovered contraband (poppy husk / straw) from a car contained in three sacks separately but had taken sample after mixing the contraband recovered from these three sacks. Learned counsel submitted that it is an admitted case that the contraband recovered was mixed and thereafter, sample was taken. Learned counsel submitted that entire action of the Seizure Officer is contrary to the Standing Order No.1/88, dated 15.03.1988 of the Narcotics Control Bureau, New Delhi and the judgment rendered by a coordinate Bench of this Court in the case of Netram Vs. State of Rajasthan , reported in (2014) 1 Cr. Law Reporter (Raj.) 163. The petitioner is in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioner.

Learned Public Prosecutor has opposed the bail application and submitted that since the contraband recovered is greater than the commercial quantity, the action of the Seizure Officer cannot be faulted with. Learned Public Prosecutor prayed that the present bail application filed by the petitioner may be dismissed.

The relevant portion of the statements of the Seizure Officer (P.W.-1) recorded before competent criminal court on 17.06.2023 reads as under:-

Having considered the rival submissions, facts and circumstances of the case, so also the statement of the Seizure Officer (P.W.-1), in the considered opinion of this Court, prima facie the action of the Seizure Officer was not in conformity with the Standing Order No.1/88, dated 15.03.1988 of the NCB, New Delhi and the judgment rendered by this Court in the case of Netram (supra).

In view of the aforesaid discussion, the rigors of Section 37 NDPS Act are duly satisfied and hence, without expressing any opinion on merits/demerits of the case, this Court is incline