The court emphasized that failure to comply with mandatory search and seizure procedures under the NDPS Act can lead to the granting of bail, especially when co-accused are similarly treated.

Order :

(KULDEEP MATHUR, J.)

1. These applications for bail under Section 483 of BNSS have been filed by the petitioners who have been arrested in connection with F.I.R. No.02/2024 registered at Police Station CBN Kota, District Kota for the offence under Section 8/15 & 29 of the NDPS Act.

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

3. Learned counsel for the petitioners submitted that in the present case the entire search and seizure proceedings were conducted in utter violation of the provisions contained in Section 42(1) and (2) of the NDPS Act. Learned counsel further submitted that the co-accused Jagdish (S.B. Criminal Miscellaneous Bail Application No.10225/2024) has already been enlarged on bail by the co-ordinate Bench of this Court vide order dated 28.08.2024 solely on the ground of non-compliance of the provisions contained in Section 42(1) and (2) of the NDPS Act. Learned counsel submitted that since the co-accused Jagdish has been enlarged on bail on the ground of non-compliance of the mandatory procedure of search and seizure, the present petitioners also deserve to be enlarged on bail as the case of the present petitioners is not distinguishable from that of the above named co-accused.

4. Learned counsel for the petitioners submitted that the petitioners are in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail may be granted to the accused-petitioners.

5. Per contra, learned Special Public Prosecutor for the respondent CBN, Sh. K.S. Nahar has opposed the bail applications. However, he was not in a position to refute the fact that the above named co- accused has already been enlarged on bail by a co-ordinate Bench of this Court.

6. Heard learned counsel for the parties at Bar and perused the order dated 28.08.2024 passed by the co-ordinate Bench of this Court. The order dated 28.08.2024 is reproduced hereinbelow for ready reference:-

“1. The prayer made in this bail petition filed under section 483 of the BNSS (Section 439 of the old Code) is for grant of bail in respect of offence(s) punishable under Section(s) 8/15, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2. To begin at the beginning learned counsel representing petitioner has strongly argued that search and seizure was conducted between sunset and sunrise without complying with the provisions of Section 42(1) and (2) of the NDPS Act. There is non- compliance of mandatory procedure of seizure and sample, which prima facie renders the seizure illegal. Another important argument contended is that the petitioner is a heart patient who has been undergoing treatment for a long time, prior to arrest. Even while in custody, his treatment for heart disease is ongoing. Inviting the Court's attention to his medical record, it has been argued that there is no possibility of receiving adequate and proper treatment in jail. With the aforesaid submissions, it was prayed that the present petition be allowed and petitioner may be enlarged on bail. Learned counsel for the petitioner fortified the above made submissions by placing reliance on the following judgments: -

(I) Smt. Najmunisha Vs. The State of Gujarat And Ors. (2024) 4 SCR 442

(ii) Chhunna @ Mehtab Vs. State of M.P. 2003 SCC (Cri) 1194

(iii) Vijay Kumar VS Narendra & Ors. 2003 SCC (Cri) 1195

(iv) Kewal Singh Rajput Vs. State of Rajasthan (2017) 2 Cri.L.R. 556

(v) Man Bhadur Vs. State of Goa 1996 Cri.L.R. 1389

(vi) State of Rajasthan Vs. Jag Raj Singh @ Hansa AIR 2016 Supreme Court 3041

(vii) Gangaram Rama Gundkar & Anr. Vs. State of Maharashtra 2002 ALLMr (CRI) 1356

(viii) Vijaysinh Chandubha Jadeja Vs. State of Gujarat 2010 AIR SCW 6843

(ix) Mahammed Khalid & Anr. Vs. The State of Telangana 2024(1) Crimes 204 (SC)

(x) Surinder Kumar Khanna Vs. Intelligence Officer, Director of Revenue Intelligence 2018 (3) CCSC 1404 (SC)

(xi) Mohammed Fasrin Vs. State, represented by Intelligence