Procedural non-compliance in evidence collection under the N.D.P.S. Act can vitiate the prosecution's case, warranting bail for the accused.

JUDGMENT :

Shree Prakash Singh, J.

1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material placed on record. Instant bail application has been filed on behalf of the applicant with the prayer to release him on bail during the trial in Case Crime No. 59 of 2024, under section 307 of the I.P.C., section 3/25 of the Arms Act and section 8/20 of Narcotic Drugs and Psychotropic Substances Act, P.S.-Mant, District -Mathura.

2. As per prosecution version, the contraband substance, i.e. 50 K.G. and 200 grams of 'Ganja', is said to be recovered from the possession of the present applicant including one another co-accused.

3. Learned counsel appearing for the applicant submits that the applicant is innocent and has falsely been planted by the police in the instant matter. He next added that 50 K.G. and 200 grams of 'Ganja' is said to be recovered from the possession of the present applicant and one another co-accused person. He submits that infact there is non compliance of the Section 52 A(2) of the N.D.P.S. Act readwith the Rules and he has taken a specific plea in paragraph 16 of the bail application, but the same has specifically not been denied.

4. He has also drawn attention of this court towards paragraph 4 of the Counter Affidavit, wherein the plea has been taken that the samples were collected after taking permission from the learned Magistrate, which demolishes the story of the prosecution as it is nowhere said that the Magistrate was present at the time of taking the samples. In support of his contentions, he has placed reliance on the Judgment of the Hon'ble Supreme Court rendered in the case of Yusuf @ Asif Vs. State reported in 2023 AIR(SC)5041 and has referred paragraph no. 16 of the said Judgment, which is extracted hereinunder :-

"16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."

5. Referring the aforesaid, he submits that the case of the present applicant is squarely covered with the ratio of Judgment abovesaid as in the present matter also, the samples are not taken before the Magistrate and only 350 grams of samples is taken from one packet. He also added that the other provisions of the Act have also been flouted and the false recovery has been shown from the possession of the applicant. He submits that the applicant has a case criminal history, which has been explained in paragraph no. 23 of the bail application and except apart the case explained in paragraph no. 23, the present matter is registered against the applicant. He also submits that the applicant is a law abiding citizen and he is languishing in jail since 29-02-2024 and he undertakes that in case,he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings.

6. Per contra, learned A.G.A. has opposed the contentions aforesaid and has emphasized that the samples are taken after permission granted by the Magistrate. He also submitted that the contraband substance, which is recovered, is above than the commercial quantity and the provisions of the N.D.P.S. Act,1985 have fully been complied with. He next added that the applicant has a case criminal history, which too is of the N.D.P.S. Act and, as such, he is not entitled for any relief.

7. Having heard the learned counsels for the parties and after perusal of material placed on record, it transpires that there is violation of provisions of Section 52-A (2) of the N.D.P.S. Act as the samples are admittedly not taken before the Magistrate; the case of the present applicant is covered with the ratio of the Judgment in the case of Yusu