ORDER : FARJAND ALI, J. 1. The jurisdiction of this court has been invoked by way of filing the second 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 95/2022 2. Concerned Police Station Bigod 3. District Bhilwara 4. Offences alleged in the FIR Section 8/18 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned order 26.02.2024 2. His first bail application being SBCRLMB No.2750/2023 came to be dismissed as not pressed by this Court vide order dated 18.09.2023. 3. Briefly stated the facts of the case are that on 11.05.2022 Thakara Ram, SHO, Police Station Bigod, District Bhilwara received an information through ADG Crime Branch, Jaipur to the effect that certain quantity of opium has been concealed by one Babu Lal at his house, which is in a steel cane and is lying underneath the staircase. When the SHO along with his team reached at the house of Babu Lal, they saw a person was sitting outside the house, on seeing the police party, was about the leave the place, but he was stopped and upon being asked, he answered his name to be Vinod Kumar and he replied that his father was not at home since he had one somewhere. He was informed regarding said information and during search of the house, 5 plastic bags containing contraband opium (weighing 7Kg 852 gms) in a steel cane were recovered from beneath the staircase connecting with the roof; he told that his father had bought the said steel cane. Thereafter the petitioner was arrested and sent to the judicial custody. The Seizing Officer took samples at the spot and marked them as ‘A’ to ‘E’ whereafter sent the same to the FSL for its chemical examination. After usual investigation, a case under Section 8/18 of the NDPS Act has been registered against the petitioner. 4. 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 simply because there are allegations against his father regarding having contraband. 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 simply because there are allegations against his father regarding having contraband. He further submits that the accused is in custody since 11.05.2022. Now, more than two 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. 5. 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. He has placed factual report on record for perusal of the Court. 6. Have heard and considered the submissions made by both the parties, Investigating Officer and have perused the challan papers and the other material available on record. 7. The factual report dated 01.08.2024 revealing that the principal accused Babu Lal has been arrested on 14.08.2023. It is revealing that right from the very inception, the prosecution has proceeded with the story that the accused Babu Lal was having connection with contraband opium which was in a steel cane was concealed in his house beneath the staircase connecting with the roof. Believing upon the information, the memo under Section 42 of the NDPS Act was prepared wherein it has been mentioned that: ^^xzke lkjk.kk Fkkuk fcxksn es Jh ckcqyky firk nYyk rsyh fuoklh ljk.kk Fkkuk fcxksn ftyk HkhyokMk us vius edku ds vUnj cuh Nr ds mij tkus dh uky ds uhps ,d LVhy dh dsu ¼NksVh dksBh½ esa vQhe j[k j[kk gS] vxj ekSds ij igqap rqjUr dj dk;Zokgh fd tkos rks ,u-Mh-ih-,l- ,DV dh dk;Zokgh gks ldrh gSA^^ 8. Interestingly, the notice under Section 50 of the NDPS Act given by the Seizing Officer Thakraram to the petitioner Vinod Kumar reiterates the fact that he had an information regarding concealment of opium by Babu Lal in his house at a particular place as mentioned in the preceding lines of this paragraph. Interestingly, the notice under Section 50 of the NDPS Act given by the Seizing Officer Thakraram to the petitioner Vinod Kumar reiterates the fact that he had an information regarding concealment of opium by Babu Lal in his house at a particular place as mentioned in the preceding lines of this paragraph. The Seizure Memo and the site memo further verifying the fact that the opium recovered by the police team from the same place for which they received secret information and the said fact is mentioned in the Memo issued under Sections 42 & 50 of the NDPS Act. The accused Babu Lal is the father of the petitioner presumably the mother of the petitioner and other family members are also residing in the same house. The petitioner has been arrested in this case solely on the ground that when the police team; in pursuance of the information received regarding concealment of opium by accused Babu Lal, reached at his home and found that the house was open and the petitioner and other family members were there and since accused Babu Lal was not present in the house, therefore, the petitioner was arrested for the sole reason of his being son of the accused Babu Lal. The accused Babu Lal has also been arrested at a subsequent point of time. Now, the question would come as to whether the petitioner should be kept confined for an offence which is committed by his father; who is also an accused of this case and is under confinement; the second question would come that whether the petitioner was having exclusive and conscious possession of the place wherefrom the contraband opium was recovered so also that whether the petitioner was having any nexus with the procurement and concealment of the opium in the house. The next question would come that before reaching the police party at the place of recovery, the police party was having knowledge that opium was concealed in the house in a steel cane, under the staircase connected with the roof and upon search the contraband was recovered from that particular place then how the liability regarding possession of the contraband can be fastened upon the present petitioner, who is the son of the principal accused. Even there is not a single piece of paper on record to suggest that the petitioner was in cahoot with his father regarding possession of the opium. 9. Perusal of the record revealing that the legal mandate provided under Section 52-A of the NDPS Act that samples should be taken in the presence of Magistrate has not been followed. 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. 10. 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.” 11. 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.” 11. In this instant matter too, the alleged contraband was seized on 11.05.2022, 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. 12. 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 futile a 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. 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. 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. 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. 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) 13. 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, more than 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. 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. 14. Accordingly, the instant second 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.