Violation of Section 52(A) of the NDPS Act due to delay in inventory preparation justifies bail under Section 439 Cr.P.C.

Order

The petitioners have been arrested in connection with FIR No.09/2022 registered at Special Police Station SOG, District ATS and SOG (Jaipur Metro) for the offence punishable under Sections 8/22, 8/25 & 8/29 of NDPS Act. They have preferred these two bail applications separately under Section 439 Cr.P.C .

Learned counsel for the petitioners submits that the recovery of contraband was made from the petitioners on 26.04.2022 and the samples were sent for FSL on 28.04.2022, but inventory in this case was prepared before the Magistrate on 03.11.2022. Counsel submits that this shows that there is clear cut violation of provisions of Section 52(A) of NDPS Act. The petitioners are inside the jail since 26.04.2022 and the trial of the case will take sufficient long time to be concluded. Therefore, the benefit of bail should be granted to the accused-petitioners. He relied upon the judgment of the Hon’ble Supreme Court in the case of Mohammad Khalid and Anr. Vs. State of Telangana , Criminal Appeal No.1610/2023, decided on 01.03.2024 . The relevant para is as under:

“Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot. The offence under Section 20(b)(ii) (c) deals with production, manufacture, possession, sale, purchase, transport, import or export of cannabis. It is not the case of the prosecution that the accused A-3 and A-4 were found in possession of ganja. The highest case of the prosecution which too is not substantiated by any admissible or tangible evidence is that these two accused had conspired sale / purchase of ganja with A-1 and A-2. The entire case of the prosecution as against these two accused is based on the interrogation notes A-1 and A-2”.

Learned Public Prosecutor has opposed both the bail applications.

Heard learned counsel for the parties and perused the material available on record.

Having regard to the totality of the facts and circumstances of the case and considering the fact that the petitioner are inside the jail since 26.04.2022, without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to the accused petitioners under Section 439 Cr.P.C .

Accordingly, both the bail applications filed under Sec.439 Cr.P.C . are allowed and it is directed that petitioners (1) Dilawar Khan S/o Hakim Khan & (2) Aasif Khan S/o Afjal shall be released on bail in connection with FIR No.09/2022 registered at Special Police Station SOG, District ATS and SOG (Jaipur Metro), provided each of them executes a personal bond in a sum of Rs.2,00,000/- with two sound and solvent sureties of Rs.1,00,000/- each to the satisfaction of learned trial court for their appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial.