The central legal point established in the judgment is the application of Section 37 of the NDPS Act, which applies when a commercial quantity of contraband is to be delivered to the accused, and the importance of compliance with search and seizure procedures and the drawing of samples as per the NDPS Act.

JUDGMENT :

1. Applicant has sought regular bail in terms of Section 439 of the Code of Criminal Procedure (hereinafter referred as the “code”) in case NCB Crime No. 01/2018 dated 08.01.2018 for the commission of offences punishable under Sections 8/20/28 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short the “NDPS Act”). It is averred, that applicant has been implicated in a false and frivolous case as he was standing in the parking area of Super Speciality Hospital Jammu, was having nothing on his person or in his hands, whereas, on 08-01-2018 non-applicant recovered four packets of charas wrapped in brown colour cello tape weighing 1.490 kg from the vehicle of co–accused Sanjay Kumar who was driving the vehicle bearing registration No. JK02V-9939 (Tempo Traveller); that non-applicant prepared the arrest memo of the applicant after falsely showing the aforesaid recovery from the possession of applicant, whereas, the only fault of applicant was that he was just standing near Super Speciality Hospital Jammu in parking area; that there has been violation of the mandatory provisions of NDPS Act as after recovery/seizure memo the NCB team alongwith the applicant and other accused persons and seized drugs and vehicle in question returned to NCB office at Gandhi Nagar Jammu where the seized narcotics i.e. charas was mixed homogeneously and weighed it and the net weight of the contraband again was found 1.490 kg, the said procedure adopted by the I.O is totally unknown to the provisions of NDPS Act and is absolutely arbitrary and casts serious doubt on the genuineness of the case. It is averred, that instead of drawing out samples at the place of recovery at Super Speciality Hospital Jammu in presence of the independent witnesses who had gathered on spot, as per the story of non applicant the I.O as per his own admission in the complaint, has withdrawn samples of 24-24 grams from the alleged recovered/seized charas and sealed them in polythene pouches after heat sealing them in the NCB Office at Gandhi Nagar Jammu with the seal of Narcotics Control Bureau JMM02 which is gross violation of provisions of the NDPS Act; that the false and frivolous statements of the accused under Section 67 of the NDPS Act were recorded which were not voluntary and lose its relevance; that the trial court has passed the impugned order of rejection of bail in a slipshod manner without appreciating the averments applicant shall not tamper the prosecution evidence and will remain present before the trial Court on each and every date of hearing.

2. Non-applicant by filing the counter/objections has vehemently opposed the bail on the grounds, that on 08-01-2018 contraband charas of commercial quantity weighing 1.490 kg has been recovered from a vehicle bearing registration No. JK02V/9939 during morning hours driven by co-accused Sanjay Kumar at Super Speciality Hospital Jammu, the statement of co-accused Sanjay Kumar recorded u/s 67 of NDPS Act by Non-applicant/NCB disclosed that the aforesaid consignment was to be delivered to applicant/accused Dabal Kumar. It is contended, that Sh. C.S. Rathore I.O (PW-1) immediately rushed towards vehicle alongwith his team and introduced himself and NCB team to both the persons, who disclose their names as Sanjay Kumar (A1) S/o Dhano Raj R/o 179/F, Shopping Centre Bakshi Nagar Jammu and another person disclosed his identity as Dabal Kumar (A2) S/o Siddu Kumar R/o Nepal presently residing at New Navi Sadak in front of Sharman Ki Kothi Panjtirthi Pacca Danga Jammu, the Intelligence Officer served notice u/s 50 of NDPS Act 1985 to both the accused explaining them the provisions of Section 50 of NDPS Act that they have a legal right to be searched in presence of a Magistrate or any Gazetted officer for which both the persons declined and preferred to reply in writing that any NCB officers present there can take their personal search, after which Sh. C. S. Rathore I.O (PW-1) carried out personal search of Sanj