Non-compliance of the mandatory provisions of Section 42(2) of the NDPS Act prejudices the accused's case and entitles them to bail.

Petitioner Loganathan and Shiva Narayan, who have been arrayed as A3 and A2 respectively along with 11 others, charged with offences punishable under Section 8(c) read with 21, 23, 25 and 27A of the Narcotic Drugs and Psychotropic Substance Act, hereinafter referred to as the 'NDPS' Act in C.C. No. 24 of 1994 on the file of the Special Judge for E.C. Act cases, Salem, who were arrested and lodged to judicial custody, have come forward with these applications for bail under Section 439 of the Code of Criminal Procedure. Since the occurrence involved in the whole case relating to both the petitioners along with others is one and the same and the points taken are common, with the consent of the Bar, I am disposing both these petitions, by passing this common order.

2.The conspectus of the facts is that at or about 11.45 A.M. on 15-5-1993 while the respondent was having a surveillance for the persons accused of the offences under the N.D.P.S. Act on intelligence spotted a light blue colour Ambassador car bearing the registration mark TNB 9346 parked near National Hotel at Salem, and in which, two persons were found getting into the same from the Hotel and that the said car proceeded towards Omalur Road, being followed by the respondent and that on covering a certain distance, at a place where a loaded public transport lorry was parked in the opposite direction in the same road, the car was stated to have stopped and one person from the car alighted and got into the lorry and on piloting by the said car, the lorry with the load of consignment followed, which was followed by the respondent's officials. At a place called Thallapallam on the same highway, both the lorry and the car were stopped and intercepted and on questioning, the respondent came to know that contrabands under the N.D.P.S. Act were concealed under the consignment of the lorry and that the inmates of the lorry as well as the car were responsible for the same and on finding the said place, being in a highway, inconvenient, for further follow up action, took the two vehicles along with responsible persons, including the petitioners herein to their office at Salem, where at about 9 P.M. on that day, the said lorry was searched and during the said sojourn, a huge quantity of heroin worth Rs. 1, 32, 20, 000/- weighing 66, 100 kgs. kept concealed under 1, 750 card board boxes containing slate pencils, which contraband was seized under the cover of mahazar at about 9 P.M. on the same day, attested by the witnesses. All the persons involved in the crime were arrested, investigation followed and several other accused were also secured. The contrabands were sent to the court according to the respondent in accordance with the procedure laid down in this regard. Consequently, a complaint was also lodged before the court at Salem and the trial of the case is yet to commence. It is thus seen that from 15-5-1993 onwards, the petitioners along with the other accused are in judicial custody for the offences aforemetioned.

3.For and on behalf of the petitioners it is stated that previously bail applications were filed but however the same were dismissed as withdrawn. Now, an attempt is being made on their behalf seeking the bail under Section 439 of the Code of Criminal Procedure on the following grounds :

(1) Mr. B. Kumar, learned counsel appearing on behalf of both the petitioners dwells his first attack by drawing my attention to the fact that an inherent improbability lies in the case of the respondent against the petitioners as seen from the first detention mahazar, prepared at about 11.45 A.M. at Thallapallam by the respondent and the statement recorded from both the petitioners. There is inconsistency between the two, according to the learned counsel for the petitioners. In the first detention mahazar, the respondent has stated that on spotting a light blue colour Ambassador car parked near the National Hotel at Salem, they found two persons coming from the hotel and