Prolonged incarceration and procedural delays necessitate careful consideration when evaluating bail conditions under the NDPS Act.

RAVINDER DUDEJA, J.

1. The present petition under Section 482 read with Section 439 (2) of the Code of Criminal Procedure, 1973 , has been filed assailing the order dated 20.11.2023 passed by the Court of the Additional Sessions Judge, Special Judge (NDPS), Patiala House Courts, New Delhi, whereby bail was granted to the respondent in Sessions Case No. 409/2019 arising out of FIR No. 40/2019 registered under Sections

21/29/61/85 of the NDPS Act at PS Special Cell.

CRL.M..C. 3394/2024 Page 1 of 7 Signature Not Verified Digitally Signed

2. Briefly stated the facts of the matter according to the charge sheet it is that on 13.03.2019, the Special Cell received secret information that accused Amit/Respondent and Ankush were trafficking heroin on the directions of Mukesh and were to deliver a consignment near Veer Apartments, Rohini. A raiding team was constituted and, after making efforts to include public witnesses, both accused were apprehended at the spot in a Hyundai Xcent car. After informing them of their rights under Section 50 of the NDPS Act and obtaining refusals in writing, a search was conducted. Two kilograms of heroin were recovered from the bag of Ankush and another two kilograms from beneath the driver’s seat of the car. Both were arrested, their disclosure statements recorded, and the car along with their mobile phones were seized.

3. Further investigation led to the arrest of Mukesh the same night near Max Hospital, Haiderpur, following disclosures made by Amit and Ankush. Although no drugs were recovered from Mukesh personally, his role in the drug operation was confirmed, and he was arrested after proper compliance with legal procedures. Voice call interceptions between the accused and their associates were analysed, and relevant incriminating calls were extracted, transcribed, and seized as evidence. Mobile phone data, vehicle ownership documents, and reports under Section 57 NDPS Act were duly prepared and submitted. The heroin samples were sent to FSL, and permission for voice sampling of the accused was obtained from the court.

CRL.M..C. 3394/2024 Page 2 of 7 Signature Not Verified Digitally Signed

4. The learned APP for the state submitted that the trial court erred in granting bail to the respondent on the ground of alleged non- compliance with Section 52A of the NDPS Act. He placed reliance on the recent decision of the Supreme Court in NCB v. Kashif, Criminal appeal 5544/2024dated 20.12.2024, wherein it was held that non- compliance with Section 52A NDPS act, does not by itself vitiate the trial and is not a sufficient ground for granting bail. It was contended that the trial court overlooked the settled legal position concerning “conscious possession” of the contraband under Section 15 of the NDPS Act, which is clearly made out from the material on record. Furthermore it has been submitted, that minor procedural irregularities, absent demonstrable prejudice, cannot justify release on bail. He emphasized that in the present case, the seal on the seized contraband was intact, ensuring the evidentiary sanctity of the samples.

5. Per contra, learned counsel for the respondent opposed the cancellation petition and submitted that the trial court had rightly exercised its discretion in granting bail, having regard to material procedural irregularities. She contended that the samples of the seized contraband were not produced before the Magistrate in a timely manner and were sent to the Forensic Science Laboratory only after an inordinate delay of 1.5 years. In support, she relied upon the judgment of the Supreme Court in Rabi Prakash v. State of Odisha, 2023 SCC OnLine SC 1109 , where the Court held that such procedural lapses can CRL.M..C. 3394/2024 Page 3 of 7 Signature Not Verified Digitally Signed seriously undermine the prosecution’s case. She submitted that the delay in sending samples adversely impacts the chain of custody and the presumption under Section 54 of the NDPS Act. According to her, the trial court w