JUDGMENT : FARJAND ALI, J. 1. The jurisdiction of this court has been invoked by way of filing an instant fourth bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case 1. FIR Number VIII(IO)12/NCB/JZU/ 2022 2. Concerned Police Station NCB, Jodhpur 3. District Jodhpur 4. Offences alleged in the FIR Sections 8/15, 25 & 29 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned order 21.05.2024 2. Briefly stated the facts of the case are that on 12.05.2022, Khiya Ram, Intelligence Officer, NCB, Jodhpur upon receiving a secret information, he along with his team proceeded towards house of Than Singh upon which, members of the family escaped. During search 5 bags weighing 100.566 Kg of poppy husk were recovered. The petitioner was apprehended on 14.05.2022 and since then he is in custody. A case under Section 8/15, 25 & 29 was registered against him. 3. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises. He further submits that the accused was taken into custody on 14.05.2022 and since then he is behind the bars. Now, one and half years have elapsed but the trial is not going to be culminated and still it seems that a further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail. 4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail. 5. I have considered the submissions made by both the parties and have perused the material available on record. 6. The first, second and third bail application being SBCRLMB Nos.16258/2022, 1125/2023 & 8165/2023 came to be dismissed by this Court vide orders dated 21.12.2022, 10.04.2023 and 08.02.2024. 5. I have considered the submissions made by both the parties and have perused the material available on record. 6. The first, second and third bail application being SBCRLMB Nos.16258/2022, 1125/2023 & 8165/2023 came to be dismissed by this Court vide orders dated 21.12.2022, 10.04.2023 and 08.02.2024. While rejecting the second and third bail applications, this Court passed the following orders:- Bail Appln.No.1125/2023 At the outset, learned counsel for the petitioner prays for withdrawal of the instant bail application with liberty to renew the prayer. The prayer sought for is allowed. Accordingly, the instant bail application is dismissed as withdrawn with liberty as prayed for. However, in the peculiar facts and circumstances of the case, it is deemed appropriate to direct the learned trial Court to make sincere endeavor to record the statement of the Seizure Officer and Investigation Officer as a first witness on preferential basis and decide the trial as expeditiously as possible and thereafter, the petitioner would at liberty to renew the prayer. Bail Appln. No.8165/2023 1. The jurisdiction of this Court has been invoked by way of filing an application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case 1. FIR Number VIII(IO)12/NCB/JZU/2022 2. Concerned Police Station NCB 3. District Jodhpur 4. Offences alleged in the FIR Sections 8/15, 25 & 29 of the NDPS Act 5. Offences added, if any 6. Date of passing of impugned order 13.12.2022 2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises. 3. Contrary to submissions made by the learned counsel for the petitioner, learned counsel for the State opposes the bail application. 4. Heard learned counsel for the parties and perused the material available on record as well as challan papers. 5. It is the case of prosecution that when a raid was made by the team of NCB on 12.05.2022 at the residence of the petitioner, he somehow made his escape good. When the place was examined by the team, 100kgs and 566gms poppy husk came to be recovered from there. 5. It is the case of prosecution that when a raid was made by the team of NCB on 12.05.2022 at the residence of the petitioner, he somehow made his escape good. When the place was examined by the team, 100kgs and 566gms poppy husk came to be recovered from there. During investigation, the prosecution had collected certain documents viz. Voter ID, domestic gas connection card, electricity bill, pan card, four mobiles etc. having the same address where from the recovery was affected by the agency to assert the fact that the place where from the recovery was affected belongs to the petitioner. As on date, a prima facie case is made out against him and therefore, the embargo contained under Section 37 of the NDPS Act would apply as per which until the twin conditions are satisfied, bail should not ordinarily be granted to an accused of NDPS Act having contraband of commercial quantity. The fetter under Section 37 of the NDPS Act is an addition to the conditions enumerated in the Code of Criminal Procedure. The antecedents of the petitioner are also disentitling him to be released on bail as he has two more cases of like nature against him. In State of Kerela & Ors. vs. Rajesh and Ors. reported in AIR 2020 SC 721 , Hon’ble the Supreme Court has propounded that while entertaining a bail plea for an offence pertaining to commercial quantity of contraband, bail should not be granted without satisfaction of the conditions mentioned in Section 37 of the NDPS Act. In this view of the matter, when the trial is still going on, I do not want to comment over the niceties of the matter yet taking into account the totality of facts and circumstances of the case and the legal bar made in the statute, I am not inclined to grant bail to the petitioner. 6. Accordingly, the instant bail application filed on behalf of the petitioner under Section 439 Cr.P.C. is dismissed. 7. In this regard when the statement of P.W. 1 Shivnarayan were recorded wherein he categorically admitted that he did not conduct investigation of this fact that at the time of alleged recovery of the contraband, the petitioner was residing at the spot. Accordingly, the instant bail application filed on behalf of the petitioner under Section 439 Cr.P.C. is dismissed. 7. In this regard when the statement of P.W. 1 Shivnarayan were recorded wherein he categorically admitted that he did not conduct investigation of this fact that at the time of alleged recovery of the contraband, the petitioner was residing at the spot. He admits that no document or revenue record or any documentary evidence in this regard has been collected by him to show a nexus of the petitioner with the place wherefrom the recovery was affected. It is replied by him that the Teacher and the Chowkidar, whom he examined did not verify the fact that the place of recovery belongs to the petitioner. It would be worthwhile to reproduce the few lines of his reply given during cross examination, the relevant part is being reproduced as under:- Þ;g dguk lgh gS fd cjkenk LFky ij dqEHkkjke iq= xksj[kkjke fuokl djrk gks] ml laca/k esa dksbZ vuqla/kku ugha fd;kA --------- ;g dguk lgh gS fd cjkenxh LFky o crk;k x;k cjkenk fuokl LFkku nLrkost dk jktLo fjdkWMZ ls nLrkost lk{; laca/k LFkkfir ugha gSA ;g dguk lgh gS fd cjkenk LFkku ch,yvks ¼f'k{kd½ }kjk Hkh Fkkuflag dk gksuk ugha crk;k gSA ;g dguk lgh gS fd xkao ds pkSdhnkj us Hkh cjkenk LFky Fkkuflag dk gksuk ugha crk;k gSAß 8. It is pertinent to mention here again that though it is claimed by this witness that he recovered some documents viz, Electricity bill, Gas Connection Diary, Aadhar Card, Passbook of bank account, Voter ID Card but surprisingly, neither any Seizure Memo has been prepared nor the Site Memo has been made as to wherefrom the above things were recovered. A ‘Panchnama’ said to have been prepared after 5–6 days of the incident in which fact regarding taking of the aforesaid documents on record is mentioned. Interestingly, the Panchnama said to have been prepared by the Investigating Officer and not by the Seizing Officer. At the time of recovery of contraband, the Seizing Officer and his team was there at the seizing place, but no such thing was found there. The Panchnama does not reflect that exactly from which place these documents were taken on record. Interestingly, the Panchnama said to have been prepared by the Investigating Officer and not by the Seizing Officer. At the time of recovery of contraband, the Seizing Officer and his team was there at the seizing place, but no such thing was found there. The Panchnama does not reflect that exactly from which place these documents were taken on record. Whether these documents were lying or kept at the seizing place or whether the documents mentioned therein were supplied by them by any other person is a serious question to ponder, however, the material available on record does not clarify the above fact. As on date, the defence plea cannot be ignored that no such things were taken from the seizing place because the seizing place does not relates to either ownership or possession of the petitioner. 9. Now, the question would arise as to why the fact of recovery of above things is not mentioned in the Seizure Memo or any other Memo and why the ‘Panchnama’ was not prepared at the site wherefrom it was received by the Investigating Agency. These are the serious loopholes which at one hand totally disconnected the accused with the recovery of contraband and on the other hand, bolster the plea of defence regarding false implication of the accused. In the given circumstances, if the above facts are adjudicated by the trial Court finally in favour of the petitioner then his period of detention cannot be returned to him back at a subsequent stage since the things done cannot be undone. 10. Perusal of the record revealing that the Seizing Officer has not complied with the mandate provided under Section 52-A of the NDPS Act for taking samples in the presence of Magistrate. Not making inventory in accordance with the guidelines issued by the Government vide Standings Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act is a serious question which if decided in favour of the accused, then his conviction cannot be made. When there appears reasonable ground to presume that certain infirmity or legal defect would be fatal to the prosecution still not exercising power of granting bail would mean not honoring the guarantee of the Constitution given to every individual regarding protection of his liberty. 11. When there appears reasonable ground to presume that certain infirmity or legal defect would be fatal to the prosecution still not exercising power of granting bail would mean not honoring the guarantee of the Constitution given to every individual regarding protection of his liberty. 11. In this view of the matter it can be said that the samples sent to the FSL and the report of the FSL in this regard is nothing but is a waste paper as propounded in a judgment titled as Mohammed Khalid and another Vs. The State of Telangana passed by Hon’ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024, it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52-A of NDPS Act, thus, the FSL was considered to be waste and was not considered worthy of being read in evidence on the basis of this inter alia other aspects, Hon’ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reproduced as under:- “22. 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 P11) is nothing but a waste paper and cannot be read in evidence.” 12. In this instant matter too, the alleged contraband was seized on 14.05.2022, and Section 52-A of NDPS Act has not been complied with after the seizure of the contraband and no samples drawn in the presence of magistrate were sent for scientific investigation, thus, the requisite compliance of Section 52-A of NDPS Act has not been made. 13. In this instant matter too, the alleged contraband was seized on 14.05.2022, and Section 52-A of NDPS Act has not been complied with after the seizure of the contraband and no samples drawn in the presence of magistrate were sent for scientific investigation, thus, the requisite compliance of Section 52-A of NDPS Act has not been made. 13. This Court feels that though there is embargo contained under Section 37 of the NDPS Act regarding grant of bail in mattes pertaining to commercial quantity and some others and true it is that bail can only be granted when the twin conditions mentioned in the provision are satisfied but this Court feels that expressing final opinion to the effect that there are no reasonable ground to believe that the petitioner is not guilty may stifle or abort the judicial proceeding in the midway and then there would remain nothing for the trial Court to proceed further in the matter and as such, the moment, the bail is granted by observing the above in clear and express terms, it would be imperative for the trial Court to either discharge or acquit him. The continuation of the trial whereafter would be a futile exercise at one hand and on the other hand the same would amounts to an abuse of process of law. This Court is of the view that pending investigation or pending trial if a serious legal defect is observed in the case of the prosecution, which may prove fatal to the prosecution at the time of conclusion then instead of giving a definite opinion that he is not guilty of the offence, it would be suffice if the bail application is allowed by giving reasons regarding observance of legal defect only; but not by giving a final finding on that aspect. The view of this Court is based upon the gist of the judgment passed by Hon’ble the Supreme Court in the matter of Mohd Muslim @ Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi) passed by Hon’ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023, wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. State (NCT of Delhi) passed by Hon’ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023, wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. The accused-appellant in the aforementioned case was directed to be enlarged on bail looking to the long period of incarceration. The paragraphs of Mohd. Muslim @ Hussain (supra) relevant to the present matter are reproduced below: “18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court’s discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023. 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to -in cases when accused of offences enacted under special laws – be balanced against the public interest. 19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.” (Emphasis Supplied) 14. At the stage of hearing of a bail plea pending trial, although this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on the State’s case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, around two years of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. In the case of Mohd. Muslim @ Hussain (Supra) it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that they are not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail applications, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused are not supposed to establish a case in support of his innocence rather his detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. Thus, in the peculiar circumstances of this case, I am of this view that the embargo contained under Section 37 of the NDPS Act would not come into the way of granting bail. 15. Accordingly, the instant fourth bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/-each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.