The main legal point established in the judgment is that the petitioner failed to make a case for bail at this stage and was allowed to file a new bail application in changed circumstances or after recording the statements of witnesses other than formal witnesses, whichever is earlier.

JUDGMENT

Anoop Chitkara, J.

1. The petitioner, incarcerating upon his arrest for possessing a commercial quantity of Etizolam, 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. Based on a chance recovery, on search of occupants of a two-wheeler, the police recovered 280 tablets of ETIZIP-0.5 (Etizolam) from the bag held by the petitioner Gurdeep Singh.

3. In paragraph 13 of the bail application, the accused declares no criminal antecedents.

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.

REASONING:

6. Ld. counsel sought bail on the grounds of parity with the driver of the two- wheeler Sanjeev Kumar. However, a perusal of the order dated 11-02-2022, passed in CRM-M-5065-2022, this court had granted bail to him in the background of the facts. The case against the petitioner is that the polythene packet that he was carrying contained the substance. Thus, the contraband was primarily from his possession. Given this, he is not entitled to bail on parity.

7. The petition states that the accused is entitled to bail because of the nonexamination of independent witnesses. However, this plea would gather force only when the accused establishes after cross-examination that the police deliberately did not associate any independent witness even when they could have been made available, and in the facts and circumstances peculiar to this case, the argument does not satisfy the requirements of section 37 of NDPS Act.

8. In State of Punjab v Baldev Singh, (1999) 6 SCC 172, the Constitutional bench of Hon'ble Supreme Court holds,

[14]. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for effecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from the stage in accordance with the provisions of the NDPS Act. In Balbir Singh's case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view.

9. The petition states 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-c