The court emphasized that the seriousness of the offence and the quantity of contraband are critical in bail considerations, and procedural violations do not automatically warrant bail.

ORDER :

1. This application for has been filed by the petitioners under Section 483 BNSS who have been arrested in connection with FIR No.36/2023 registered at Police Station Jawda, District Chittorgarh for the offence punishable under Section 8/15 of the NDPS Act.

2. As per the prosecution, on 29.08.2023, the SHO of Police Station Jawda, during routine nakabandi flagged down one loading tempo bearing registration No.RJ-20-GA-8916. On a search being made of the aforesaid vehicle, contraband (poppy husk/straw) weighing 338 kilograms was found hidden beneath the bags in which tarpaulin was kept. The petitioners were found sitting on the passenger seat of the offending vehicle and they were apprehended on the spot.

The petitioners divulged an information under Section 27 of the Indian Evidence Act that they had procured the recovered contraband from the co-accused Mahendra @ Member Banjara. Later on, the petitioners had also identified the house of the co-accused Mahendra @ Member Banjara, from where they allegedly procured the recovered contraband.

3. Learned counsel for the petitioners contends that the petitioners have been falsely implicated in the present case. He submits that the petitioners were mere loaders/dockworkers and they had no knowledge about the fact that contraband being transported in the offending vehicle.

4. Learned counsel further submits that though admittedly the contraband was recovered from the conscious possession of the present petitioners but the entire search and seizure proceedings are in violation of Sections 42(1) and 52-A of the NDPS as Shri Kamalchand who carried out the search and seizure proceeding was not holding the position of SHO of Police Station Jawda but was only an acting Station House Officer that also in the non-presence of a magistrate, therefore, he could not exercise the powers under Section 42 of NDPS Act and thus the whole proceedings are vitiated.

5. It was also submitted by the learned counsel that a perusal of the seizure memo would indicate that the seizure officer had not collected separate samples from each bag of the contraband poppy husk/straw, therefore, the same is not in conformity with the Standing Instruction No.1/88 issued by the Narcotics Control Bureau, New Delhi.

6. Lastly, learned counsel submits that the petitioners are judicial custody since last more than one year and six months and delay in trial is not at all attributable to him. Therefore, the benefit of bail may be granted to the accused-petitioners.

7. Per Contra, learned Public Prosecutor has vehemently and fervently opposed the bail application and submitted that huge quantity of contraband (poppy husk/straw) has been recovered from the conscious possession of the present petitioners, therefore, looking to the seriousness of the offence allegedly committed by the petitioners, they do not deserve to be enlarged on bail.

8. Heard.

9. After carefully scanning the material available on record and considering the facts and circumstances of the case, this Court prima facie finds that contraband (poppy husk/straw) weighing 338 kilograms was recovered from the conscious possession of the present petitioners. Having regard to such a huge quantity of contraband being transported in the offending vehicle, this Court finds it hard to believe that the petitioners were not aware about the contents of the consignment being transported in the offending vehicle. From a perusal of the statements of Shri Kamalchand, SHO of Police Station Jawda (Seizure Officer) recorded before the competent criminal court as P.W.-1, this Court prima facie finds that though the learned counsel for the petitioners has raised an argument for violation of Standing Instruction No.1/88 issued by the Narcotics Control Bureau, New Delhi, however, in the examination-in-chief and cross-examination of the seizure officer, no question has been put to him to verify the credibility of the samples collected.

10. In the considered opinion of this Court, the provi