The interpretation of procedural requirements and limitations on granting bail under the NDPS Act influenced the court's decision.

ORDER

1. These fist applications under section 439 of Cr.P.C. have been filed on behalf of the applicants, who are behind the bars 20.12.2020 in connection with Crime No.7/2020, registered at Police Station Narcotic Control Bureau, District Indore for the offence punishable under Sections 8/20, 25, 27(a)/28 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2. As per the case of prosecution, the applicants alongwith co-accused were travelling from Andhra Pradesh to Shahjapur in a white-coloured Mahindra Bolero Jeep bearing registration No.MP-53-CA-0945. On receiving an information from some reliable informant that in the said vehicle, the applicants were transporting exceedingly large quantity of contraband, therefore, the said vehicle was intercepted by the police team and after making superficial enquiry, the said vehicle was conducted to the nearest police station and on being ransacked, 80.351 kg of ganja was recovered from the said vehicle. Thereafter, a panchnama and other formalities were done and then the offence under the aforesaid sections was registered against the applicants and co-accused.

3. Learned counsels for the applicants submit that as per prosecution's own case, the vehicle was intercepted by the respondent on 20.12.2020 at about 5.30 pm. at Bus-stop Chauraha, Harda, where usually it remains extreme congested traffic and to thoroughly inspect the vehicle and complete other formalities, the vehicle was taken to the nearest police station, where extensive search was made and seizure memo was prepared.

4. Shri Kochar propounds that looking to the material available in the charge-sheet, for sure it is clear that the mandatory procedure required to have been followed, was not followed by the respondent and infact they violated the requirement of Section 52A of NDPS Act and also the instructions issued by way of notification dated 16.01.2015. Elaborating his contention, Shri Kochar points out two major procedural flaws on the part of prosecution; first that seizure memo and other formalities were not done on spot, but were done in the police station premises and secondly, the procedure prescribed for destroying the seized contraband was not followed, therefore, the applicants are entitled to be released on bail for the reason that the prosecution has failed to observe the mandatory provisions. To reinforce his submission; he relied upon several judgments of the Supreme Court and the High Courts saying that in view of the observations made by the Supreme Court in those decisions, due to material illegality and irregularities committed by the respondent by not adhering to the mandatory requirement, whole proceedings are vitiated and implication of the applicants in the alleged offence appears to be doubtful. He placed reliance on the decisions in re (2004) 10 SCC 562 Jitendra and another v. State of M.P.; 2020 SC Online Del 2080 Amani Fidel Chris v. Narcotics Control Bureau and (2016) 3 SCC 379 Union of India v. Mohanlal and another. He submits that though the permission has been granted by the Special Court for destroying the seized contraband, but the prescribed procedure was not followed, which contained in the notification dated 16.01.2015 and also taken note of by the Supreme Court in the case of Mohanlal (supra).

5. On the preceding date of hearing, this Court directed the counsel for respondent to clarify the factual position as has been pointed out by the counsel for the applicant and in response thereto, Shri J.KJain, ASG by producing the entire charge-sheet, has sanguinely attempted to unravel the complexities that there was no violation of any of the mandatory procedures and submitted that the submissions made by counsel for the applicant deserve outright rejection as are factually incorrect. He vigorously opposed the bail applications and submitted that looking to the huge quantity of ganja and magnanimity of other relevant material including the fact that some of the accused