Prima facie non-compliance with the NDPS Act and lack of criminal history under the NDPS Act justified granting bail to the applicant.

JUDGMENT :

1. Heard learned counsel for the applicant, learned AGA for the State and perused the record.

2. It is alleged in the prosecution case that on 21.11.2022 at 5:20 hours, while the police party was patrolling and reached near Janjadwapur crossing, one person was coming from Debiyapur on foot. On seeing the police personnel, he turned towards Jadwapur road and when the police tried to speak him, he started running, thereafter, he was followed and caught after 30 paces away. After being asked the reason for running, he confessed his guilt. Upon being apprised that under NDPS Act he has option to be searched by some gazetted officer or the magistrate, he gave his consent to be searched by the police officials who caught him. Written consent was taken from him and after that he was personally searched and bag held in his hand was also searched. From the bag, 11 wrappers were found, total weight of which was found to be 554 grams, out of which 40 gram was taken as a sample and remaining contraband was sealed.

3. Learned counsel for the applicant submits that there is total non-compliance of Section 50 NDPS Act. The applicant has not been searched by the gazetted officer or by the magistrate. There is no independent witness to the recovery. The applicant is languishing in jail since 21.11.2022. The applicant has explained his criminal history in para 13 of the bail application. There is no other case under NDPS Act against the applicant.

4. Learned counsel for the applicant further submits that there is total non-compliance of Section 52A of NDPS Act. The samples have been drawn on the spot and not in front of the magistrate. Prosecution has not obtained any certificate from the magistrate as required under Section 52A of NDPS Act. No photographs of the substance have been taken. Even no application has been filed before the magistrate under sub section 2 of Section 52A of NDPS Act. The alleged contraband has been seized and representative samples have been drawn without the permission of the concerned magistrate. List of samples so drawn have not been certified by the magistrate. The process of drawing the samples is not under supervision of the magistrate and the entire exercise has not been certified by the magistrate.

5. It is further submitted that there is no possibility of the applicant of fleeing away after being released from jail or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.

6. Learned AGA has opposed the bail application submitting that the applicant has a criminal history of 9 cases and therefore, he is not entitled to be enlarged on bail. However, he could not show anything from the record that there is compliance of Section 52A of NDPS Act.

7. Learned counsel for the applicant in support of his contention has relied on the judgment of the Supreme Court passed in the case of "Bothilal v. Narcotics Control Bureau, 2023 SCC OnLine SC 498". Emphasis is on para 16 of the judgment. He has further placed reliance on the judgment of the Supreme Court passed in the case of "Simarnjit Singh v. State of Punjab, 2023 SCC OnLine SC 906", wherein the Court while relying on the judgment of "Union of India v. Mohanlal, (2016) 3 SCC 379", has held that drawing of samples from all the packets at the time of seizure is not in conformity with the law laid down by the Supreme Court in the case of Mohanlal (supra).

8. So far as the criminal history of the applicant is concerned, he has relied on the judgment of the Supreme Court passed in the case of "Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294". Emphasis is on para 49 of the judgment.

9. Perused the record.

10. From perusal of the record, prima facie it appears that recovery was effected from polythene carried out by the accused and allegedly the said polythene contained 554 gram of alprazolam and prima facie there appears to be a clear non-compliance of the mandate of Section 52 A of NDPS