Mandatory compliance with Section 50 of the NDPS Act and the burden of proof placed on the accused under section 37 of the NDPS Act are crucial legal principles established in the judgment.

JUDGMENT

Anoop Chitkara, J.

1. The petitioner, incarcerating upon his arrest for possessing a commercial quantity of 1,65,000 CLOVIDOL-100 SR tablets, containing Tramadol, in violation of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), has come up before this Court under Section 439 of CrPC, seeking bail.

2. In paragraph 5 of the bail petition, the accused declares that he was never involved in similar type of crime.

3. On Oct 30, 2019, the Inspector of the above-mentioned police station, while patrolling in his jurisdiction, received specific information that Sukhwinder Singh, Ravi Singh, Jinder Singh, and Lakhwinder Singh were involved in selling vast quantities of intoxicants, and they would be traveling and would have contraband with them, which can be recovered if caught. The SHO found the information to be reasonably reliable and registered an FIR. After that, the police party stopped the vehicle and found two of the personsabove named persons, namely, Lakhwinder Singh and Sukhwinder Singh. The accused desired the search by a gazetted officer, and on this SP was called, and in her presence, the investigator searched the vehicle and recovered 1,65,000 CLOVIDOL- 100 SR tablets without any purchase bills, license, or permission. The FSL found the constituents of the tablet to be Tramadol.

4. Ld. Counsel for the petitioner contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.

5. While opposing the bail, the contention on behalf of the State is that the quantity of contraband involved in the case falls in the commercial category, and petitioner is not entitled to bail.

REASONING:

6. The substance involved in the present case is 'Tramadol'. Entry no. 238 ZHof the table specifying small and commercial quantities specifies the quantity greater than 250 grams as commercial quantity and lesser than 5 grams as small.Thus, the quantity allegedly involved in this case is commercial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case. The burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.

7. In paragraphs 7 &8 of the petition, the petitioner states that he was the driver of the vehicle and the vehicle belongs to one Amrik Singh and it was taken on hire. However, the petitioner did not substantiate his pleadings by any material whatso ever.

8. The petition further states that the accused is not shown in the conscious possession of the contraband. However, the recovery is from a vehicle, and the burden is on the petitioner, who was driving it, to point out the place and time, where it was kept in the vehicle, and by whom it was kept. A perusal of the petition does not refer to any such explanation. Furthermore, this plea would gather force only when the accused establishes the fact after cross-examination, and in the facts and circumstances peculiar to this case, the argument does not satisfy the requirements of section 37 of the NDPS Act.

9. Ld. counsel for the petitioner submits that the investigator conducted search and seizure violating section 50 of the NDPS.

10. Whether the Investigator complied with the mandatory provisions of sections 42 and 50 of the NDPS Act is a question of fact to be adjudicated in the trial. However, before this court treats the compliances as illegal, the prosecution needs an opportunity to prove that they had complied with the mandatory provisions per law. Such stage would come only during the trial and certainly not at the bail stage, where it would be hit by the maxim Audi alteram partem. The exception to this would be applicable only when the non-compliance of the mandatory provisions of sections 42 and 50 of the NDPS Act is apparent on the face of the special report under section 57 of the NDPS Act and other documents of search and seizure, and in t