Non-compliance with mandatory provisions of the NDPS Act, specifically Section 42, vitiates the recovery of narcotics and affects the prosecution's case, allowing for bail.

Order :

KULDEEP MATHUR, J.

1. This application for bail under Section 483 BNSS has been filed by the petitioner who has been arrested in connection with F.I.R. No.200/2021 registered at Police Station Kareda, District Bhilwara for offence under Section 8/29 of NDPS Act .

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

3. Learned counsel for the petitioner submitted that co-accused Rajmal @ Raju Banjara has already been enlarged on bail by the co-ordinate Bench of this Court vide order dated 03.05.2023 passed in Criminal Misc. 2^nd Bail Application No.5233/2023 and an another co-accused Ishwar Lal Gurjar has already been enlarged on bail by this Court vide order dated 12.05.2023 passed in Criminal Misc. 2^nd Bail Application No.5629/2023. Learned counsel for the petitioner further submitted that the case of present petitioner is not distinguishable from that of the above named co- accused who have already been enlarged on bail. 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.

4. Per Contra, learned Public Prosecutor has opposed the bail application and submitted that looking to the seriousness of allegations levelled against the present petitioner, he does not deserve to be enlarged on bail. However, he was not in a position to refute the fact that above named co-accused have already been enlarged on bail by this Court.

5. Heard learned counsel for the parties and perused the order dated 03.05.2023 passed by the co-ordinate Bench of this Court. The order dated 03.05.2023 is reproduced hereinbelow for ready reference:-

“1. The instant bail application has been filed by the petitioner Rajmal @ Raju Banjara S/o Bherulal Banjara under Section 439 Cr.P.C against the order impugned dated passed by learned court below in connection with FIR No.200/2021 registered at Police Station Kareda, District Bhilwara for the offences under Sections 8/15 of NDPS Act .

2. Learned counsel for the petitioner submits that a false case has been foisted against the petitioner. He has nothing to do with the alleged offences and no useful purpose would be served by keeping him behind the bars. There are several flaws and laches in the case of the prosecution. He submits that the seizing officer had been informed by the CID CB officers about the presence of narcotic substance in the seized vehicle bearing registration No. RJ30 GA 6260 before he left to conduct search and seizure, yet the seizing officer did not relay the above-mentioned information to the senior officers before proceeding further which is mandatory under Section 42 of NDPS Act and thus, the entire process of recovery stands vitiated on this count because of non- compliance of Section 42 of NDPS Act , therefore, the fetter contained under Section 37 of the NDPS Act does not come in way of releasing the petitioner on bail.

3. Per contra, learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the petitioner and submits that the matter pertains to recovery of 240 kilograms of poppy husk, thus, the impediment contained under Section 37 of NDPS Act will be attracted in the factual situation of the present case.

4. Heard and perused the material available on record as well as gone through the statutory provisions applicable in the matter.

5. Right from inception, before progressing for the purpose of conducting search and seizure of the alleged contraband, the seizing team was having the information regarding the transportation of contraband which fact is apparent from a bare perusal of the ‘Hukmnama’ issued to constable Rajendra Kumar which is reproduced herein below for ready reference:-

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