ORDER : 1. Through instant petition, accused has come before this Court for grant of bail under section 439 of the Cr.P.C. in connection with crime registered pursuant to Case No. 1/2022 CBN, Nimach (Madhya Pradesh) in respect of offences punishable under Sections 8/15, 8/18 and 8/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Earlier, petitioner made endeavor for seeking bail by way of filing first bail application but the same was dismissed as withdrawn with liberty to file fresh after recording of the statement of the seizure officer. 3. Before delving upon questions of bail, it will be apt to lay factual canvass which unfolds that on 10.01.2022 at 20.40 hours, residential house of petitioner Balkishan situated in Khempura Basti, Village Kanera in tehsil Nimbahera was raided along with his team by the Purshotam Meena, inspector of CBN Neemach (M.P.). When team reached to the house, two persons managed to fled away through the roof of the house. After following due procedure, a pickup vehicle No. RJ-27-GC-5765 which was found parked in the compound, was searched and recovery of 1108.200 Kg. of poppy straw and 650 grams of opium was made from the vehicle. 4. To begin at the beginning Shri Ravindra Kumar Charan, learned counsel representing petitioner has fervently argued that search was conducted between sunset and sunrise without complying with the provisions of Section 42 of the NDPS Act; that there was non-compliance of mandatory procedure of seizure and sampling, which prima facie renders the seizure illegal. It is further argued that the samples for chemical analysis from seized drug were taken on the spot of recovery itself and in the absence of a Magistrate in derogation of provisions of Section 52A of the NDPS Act and such irregularities malign the entire proceedings. 5. While inviting the attention of the Court towards cross-examinations conducted from the seizure officer Purshottam Meena (PW-1), it is contended that he has admitted the fact that no evidence whatsoever was collected regarding the title or ownership or actual physical possession of the premises in question during the investigation. Even no documentary evidence was collected in respect of the premises, wherein the pickup vehicle was found parked. 6. It is also argued that neither the petitioner was present on the spot at the time of recovery and no member of raid party even knew him before. 7. Even no documentary evidence was collected in respect of the premises, wherein the pickup vehicle was found parked. 6. It is also argued that neither the petitioner was present on the spot at the time of recovery and no member of raid party even knew him before. 7. It is further argued that any of family members of petitioner were also not found residing in the house or compound, therefore petitioner has been implicated in the present case merely on the basis of conjectures and surmises; that petitioner is innocent person and a false case has been foisted against him; that nothing has been recovered from possession of the petitioner; that there is no evidence worth the name on record to connect the petitioner with the alleged crime; that there is no concrete evidence to show direct nexus between the petitioner and the alleged contraband drug. With the aforesaid submissions, it was prayed that the present petition be allowed and petitioner may be enlarged on bail. 8. Learned counsel for the petitioner has further argued that there is infirmity in drawing samples from the contraband and proper procedure has not been followed by the seizure officer while drawing mixed samples of drug recovered, therefore mixed samples which were taken out cannot be treated as representative of all the contraband sized from the petitioner. 9. Learned counsel for the petitioner has placed reliance on the judgment rendered by Hon’ble Supreme Court in the case of State of Rajasthan vs. Jag Raj Singh alias Hansa, 2016 Cri. L.J. 3336. 10. Per contra, learned Public Prosecutor submits that the seizure and sampling was in consonance with the procedure and the shortcomings pointed out by the learned counsel for the petitioner cannot be considered at this stage and are to be decided after trial only. It is further argued that the procedure prescribed under Section 52A of the NDPS Act was substantially adhered to; that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner indulges in the illegal trade of narcotics; that the petitioner do not deserve any sympathy as the petitioner is a drug peddler. It is further argued that the procedure prescribed under Section 52A of the NDPS Act was substantially adhered to; that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner indulges in the illegal trade of narcotics; that the petitioner do not deserve any sympathy as the petitioner is a drug peddler. Contraband of commercial quantity has been seized from the petitioner; that release of petitioner will hamper the trial; that restrictions of Section 37 of the N.D.P.S. Act clearly operate against the petitioner; that petitioner has been charged for the offences punishable by severe punishment. Therefore, he does not deserve to be released on bail. 11. Arguments advanced by learned counsels for the parties were heard at length and record was also perused. 12. The seizure officer Purshottam Meena (PW-1) in his deposition during the trial has deposed as under: “It is correct to say that search and seizure was made after sunset..........I did not obtain any warrant from the Magistrate for the night search......No documents were found during the search regarding the ownership and possession of the house or the compound that would indicate the petitioner’s ownership and possession........I didn’t know the person who fled away from the house.............It is correct to say that the procedure of extracting the samples before the Magistrate was not followed. It is correct to say that the samples sent to the Forensic Laboratory were not the samples, extracted before the Judicial Magistrate.......The petitioner was not present at the spot at the time of the search and seizure.....” 13. The petitioner seeks bail inter-alia on ground of breach of Section 42 of the NDPS Act. This provision deals with the powers of entry, search, seizure and arrest without warrant or authorization. Hon’ble the Apex Court has observed that Section 42 (1) indicates that any authorized officer can carry out search between sunrise and sunset without warrant or authorization. The scheme further indicates that in the event, when the search is to be made between sunset and sunrise, warrant would necessary unless the officer has reason to believe that a search warrant or authorization cannot be obtained without affording the opportunity to the offender to escape. Besides it, the grounds of belief have to be recorded in the writing by the seizure officer. 14. Besides it, the grounds of belief have to be recorded in the writing by the seizure officer. 14. In the instant case, it is not in dispute that the house of the petitioner was searched and contraband drug was seized between sunset and sunrise without any warrant or authorization. It is not the statement of seizure officer that he did not have sufficient time to obtain warrant or authorization without affording opportunity to the petitioner to escape or conceal the evidence. He also has not recorded reason for such belief in terms of proviso to Section 42 (1) of the NDPS Act. 15. The mere presence of the superintending officer with the seizure officer at the time of search and seizure does not eliminate the necessity of a search warrant or authorization as required by law. Furthermore, there is no signature of the superintending officer on the seizure memo which prima-facie proves his presence. 16. The record further indicates that the investigating agency had taken samples of contraband without taking recourse to Section 52A of the NDPS Act. In the case of Simranjeet Singh vs. State of Punjab, 2023 (3) Crimes (SCC) 168, the Apex Court has observed that drawing of samples from the contraband recovered at the time of seizure is not in conformity with the law laid down in the case of Union of India vs. Mohanlal and Others, (2016) 3 SCC 397 and the same creates a serious doubt about the prosecution’s case that substance recovered was a contraband. 17. Section 52A of the Act contemplates that where any narcotic drugs has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, such officer shall prepare an inventory of such narcotic drugs, containing all details of that narcotic drugs and make an application to any Magistrate for the purpose of allowing to draw representative samples of such drugs in the presence of such Magistrate and certifying the correctness of samples so drawn. 18. While dealing with scope of Section 52A of the Act, Hon’ble the Supreme Court in the case of Mangilal (supra) held that Sub-Section (2) of Section 52A of the NDPS Act mandates the competent officer to prepare an inventory of narcotic drugs recovered. This has to be followed through an appropriate application to the Magistrate concerned. 18. While dealing with scope of Section 52A of the Act, Hon’ble the Supreme Court in the case of Mangilal (supra) held that Sub-Section (2) of Section 52A of the NDPS Act mandates the competent officer to prepare an inventory of narcotic drugs recovered. This has to be followed through an appropriate application to the Magistrate concerned. Such an application can be filed for anyone of the aforesaid three purposes. One of them is purpose of drawal of samples in presence of Magistrate for due certification of samples. The objective behind this provision is to have an element of supervision by the Magistrate in taking samples. Therefore, when there is non-compliance of Section 52A of the NDPS Act and where a certification of a Magistrate is lacking, any sampling would not constitute primary evidence. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval for certifying samples drawn. 19. In Mohanlal’s case (supra), it was held that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is duty-bound to approach the Magistrate for the purposes mentioned above, including grant of permission to draw representative samples in his presence. Such samples will then be enlisted and the correctness of samples so drawn would be certified by the Magistrate. 20. There is no provision in the Act that mandates taking of samples at the time of seizure itself. The question of drawing of samples at the time of seizure, which often takes place in the absence of the Magistrate, does not in the above scheme of things, arise. The process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 21. In view of above pronouncements of Hon’ble the Apex Court, I have perused the evidence of seizure officer Purshottam Meena (PW-1) in which he has stated that samples were drawn immediately after the seizure, in the absence of a Magistrate. 22. 21. In view of above pronouncements of Hon’ble the Apex Court, I have perused the evidence of seizure officer Purshottam Meena (PW-1) in which he has stated that samples were drawn immediately after the seizure, in the absence of a Magistrate. 22. Prima-facie the act of Purshottam Meena (PW-1) of drawing samples from the contraband drug at the time of seizure is not in conformity with the law laid down in above mentioned cases, which brings the case of prosecution under cloud about the prosecution’s case that substance recovered was a contraband. 23. Arguments of learned counsel for the petitioner in respect of samples, not being representative prima facie also appears to be tenable. According to the seizure memo, seizure officer had seized a total of 53 bags of contraband drug which were marked as mark 1 to mark 53. These 53 bags were divided into a total of 7 lots by the seizure officer and these lots were marked as lot A to lot G. Mixed samples from each lot were drawn by the seizure officer. In other words, only 7 samples were taken from lot A to lot G, whereas according to law, a total of 53 samples were required to be taken from all the 53 bags of contraband drug recovered, which could have been representative. In the facts and circumstances of the present case, keeping in view the 53 bags of contraband recovered, there is prima facie infirmity in the manner in which samples have been drawn. 24. The mere finding of the petitioner’s ID or his personal documents in the house or vehicle cannot be considered as ownership or occupation of that premises or vehicle by that person. 25. In the case Rabi Prakash vs. State of Odisha, Special Leave to Appeal (Crl.) No. 4169 of 2023, Hon’ble Apex Court has observed that “prolonged incarceration, generally militates against the most precise fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation the conditional liberty must override the statutory embargo created under Section 37 of the NDPS Act.” 26. In view of the deposition of seizure officer as narrated above, prima-facie there appears to be serious gray areas in the case against the petitioner as regards the exclusive ownership and possession of the premises of recovery. 27. In view of the deposition of seizure officer as narrated above, prima-facie there appears to be serious gray areas in the case against the petitioner as regards the exclusive ownership and possession of the premises of recovery. 27. In this view of the matter, this Court is of the opinion that conditions of Section 37 of the NDPS Act are duly satisfied qua the petitioner, forasmuch this Court feels that the petitioner has available to him substantial grounds so as to question the prosecution case. The petitioner is in custody for the last almost 21 months. The bail rejection order goes to show that petitioner is not involved in any other case under NDPS Act. This Court without commenting on the merits of the case, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. 28. Consequently, the present second bail application is allowed and it is directed that the petitioner Balkishan alias Lala Alias Mofat S/o Suresh Chandra Dhakar, arrested in connection with Case No. 1/2022 CBN, Nimach (Madhya Pradesh), shall be released on bail provided he furnishes a personal bond and two surety bonds of sufficient amount to the satisfaction of the learned Trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so. This order is subject to the condition that accused, within 7 days of his release and sureties, on the day of furnishing bail, will also furnish details of their all bank accounts, with bank and branch name, in shape of an affidavit, and submit legible copy of their Aadhar cards as well as front page of Bank pass book, for smooth recovery of penalty amount, if there arise a need for recovery of penalty under Section 446 Cr.P.C. in future.