ORDER

1. Accused Nos.1 to 3 in Crime No. 156/2023 registered by Nelamangala Rural Police Station, Bengaluru District, for offence punishable under Sections 20(b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, 'the NDPS Act'), are before this Court under Section 439 of Cr.P.C.

2. Heard learned counsel for the parties.

3. FIR in Crime No. 156/2023 was registered by the Nelamangala Rural Police Station, initially against unknown persons on the report dated 28.06.2023 submitted by the Inspector of Police, Nelamangala Rural Police Station. After registration of the FIR, a raid was conducted by the police to the spot where the accused had parked their car and were attempting to sell the contraband article ganja. From the car belonging to the accused, police had seized contraband article ganja totally weighing 20 Kgs. 500 Gms. and the seized contraband was subjected to panchanama. The accused along with the contraband article were brought to police station and subsequently, the accused were produced before the jurisdictional Court and remanded to judicial custody. After investigation, charge-sheet was filed totally against three accused.

4. The petitioners herein are arraigned as accused Nos.1 to 3 in the charge-sheet. Bail application filed by them before the Trial Court in Crl. Misc. No.1336/2023 was rejected on 24.07.2023. They had earlier approached this Court in Crl. P. No.8559/2023 which was dismissed as withdrawn with liberty to file a fresh petition after charge-sheet is filed. Since the police have now filed the charge-sheet on 27.11.2023, the petitioners are before this Court.

5. Learned counsel for the petitioners submits that there is no compliance of the requirements under Section 42 of the NDPS Act which is mandatory in nature. He also submits that seized contraband article includes the stem, roots, leaves and other parts of the ganja plant. Investigation in the case is complete and charge-sheet has been filed. Petitioners have no similar antecedents and accordingly, prays to allow the petition.

6. Per contra, learned High Court Government Pleader has opposed the bail petition. She submits that commercial quantity of contraband article ganja is involved in the case and therefore, in view of the rigor under Section 37(1)(b) of the NDPS Act, the petitioners' prayer may be rejected.

7. The material on record would indicate that the first informant had received credible information on 28.06.2023 when he was in the police station, that three persons who had arrived in the vehicle bearing No. KA-05-MF-2367, were making attempts to sell the contraband article ganja. From a reading of the report dated 28.06.2023 submitted by him which had resulted in registering FIR in Crime No. 156/2023 by Nelamangala Rural Police Station, Bengaluru, it is seen that requirements of Section 42 of the NDPS Act has not been complied with in the matter. Though the first informant has stated that he had reduced the information into writing, he has not forwarded the same to his higher Officers as required under Section 42 of the NDPS Act.

8. This Court as well as the Hon'ble Supreme Court time and again have reiterated that compliance of Section 42 of the NDPS Act is mandatory in nature. In the absence of the same, the seizure becomes doubtful. The contraband article ganja seized in the present case weighs about 20 Kgs. 500 Gms. The seized contraband article include stem, root, leave and other parts of the ganja plant and therefore, it becomes highly doubtful whether the contraband article seized in the present case can be considered as 'ganja' within the meaning of Section 2(iii) (b) of the NDPS Act. Therefore, the rigor under Section 37(1)(b) of the Act cannot be strictly made applicable to petitioners

9. Undisputedly, the petitioners have no criminal antecedents. Investigation in the case is complete and charge- sheet has been filed. Petitioners are in custody from 28.06.2023 onwards. Under the circums