ORDER : FARJAND ALI, J. 1. The jurisdiction of this court has been invoked by way of filing the instant bail application under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case 1. FIR Number 363/2021 2. Concerned Police Station Nai Mandi, Gharsana 3. District Sri Ganganagar 4. Offences alleged in the FIR Sections 8/22 & 25 of the NDPS Act 5. Offences added, if any Section 29 of the NDPS Act 6. Date of passing of impugned order 13.05.2024 2. The second bail application being S.B. Criminal Misc. Bail Application No.10719/2023 on behalf of petitioners have been dismissed by this Court vide order dated 03.11.2023 but liberty was granted to them to renew their prayer for bail after the statement of Seizing Officer is recorded. Now, the statement of Seizing Officer is recorded. Hence, these ball applications. 3. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and their incarceration is not warranted. He further stated that Section 52-A of the NDPS is not complied with. Thus, there are no factors at play in the case at hand that may work against grant of bail to the accused-petitioners and they have been made an accused based on conjectures and surmises. 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. Have considered the submissions made by both the parties and have perused the material available on record. 6. It is reflecting from the record that on intervening night of 27.10.2021/28.10.2021, during patrolling, Madan Lal, SHO, P.S. Sadar Sri Gangangar and his team intercepted a Motorcycle bearing registration No.RJ13 FS 3338 which was being driven by Anil Kumar and Sunil Kumar was pillion rider. They were carrying a plastic bag. Upon being searched, total 14500 tablets of Tramadol Hydrochloride Tablets 100 Mg TRIO-SR21 and 21350 tablets of Tramadol Prolonged release Corlividol 100 SR weighing 6.5 Kg were recovered from their conscious possession. Seizing Officer took the samples at the spot, marked them and sent the same to the FSL for its chemical examination. The accused were arrested and sent to custody. Seizing Officer took the samples at the spot, marked them and sent the same to the FSL for its chemical examination. The accused were arrested and sent to custody. Till date out of fifteen witnesses only five could have been examined. Of course, there is a fetter under Section 37 of the NDPS Act regarding grant of bail to an accused having illegal possession of commercial quantity of contraband but a fundamental right of speedy trial to them cannot be permitted to be flouted. When there appears conflict between the statutory provision and the fundamental right then this Court is of the view that a protection of fundamental right should be given preference over the statutory bar in granting bail. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual cannot encroached upon by keeping him/them behind the bars for an indefinite period of time pending trial. 7. Besides the above, it is an admitted situation that the samples which were taken by the Seizing Officer from the spot on 28.10.2021 were not taken in the presence of the Magistrate and the same were sent to the FSL. Apparently, the guidelines issued by the Government vide Standing Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act have not been complied with. 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 wherein 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 report 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. 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.” 8. Moving on to the impediments contained under Section 37 of the NDPS Act, it is considered relevant to refer to the recent ruling passed by Hon'ble the Supreme Court in 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. 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 cooperating 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) 9. In Rabi Prakash Vs. 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) 9. In Rabi Prakash Vs. State of Odisha passed in Special leave to Appeal (Crl.) No.(s) 4169/2023, Hon’ble the Apex Court has again passed an order dated 13th July, 2023 dealing this issue and has held that the provisional liberty(bail) overrides the prescribed impediment in the statute under Section 37 of the NDPS Act as liberty directly hits one of the most precious fundamental rights envisaged in the Constitution, that is, the right to life and personal liberty contained in Article 21. 10. While keeping an accused detained, the opportunity to the prosecutor to lead evidence can only be given for a reasonable period. The wider connotation of the phrase ‘reasonable period’ be understood to be one year because the case is classified as a sessions case which would mean that the like cases should commence and conclude within a session, that is, one year. Even if an elastic interpretation of the expression ‘reasonable period’ is taken on the pretext of certain unavoidable circumstances, then it can only be doubled and even in that situation, trial has to be completed within two years while keeping an accused in custody. Suffice it would to say that for the purpose of determination as to whether the accused is guilty or not, only a reasonable period can be awarded to the prosecutor if the accused is behind the bars. The cases which are classified as session case are purposefully directed to be heard by senior officer of District Judge Cadre looking to his experience and rank/grade/post. In criminal jurisprudence prevalent in India, there is a presumption of innocence working in favour of the accused until he is proven guilty in the trial. The trial is conducted for the purpose of affording an opportunity to the prosecutor to prove the charges and only for the purpose of proving guilt or adducing evidence on record, an unreasonable period of time cannot be granted as the same infringes the fundamental rights of an accused which are otherwise guaranteed by the Constitution of India. While entertaining a bail plea, the court of law is required to take into account the above-mentioned aspect of the matter as well as the gravity of offence and quantum of sentence. 11. While entertaining a bail plea, the court of law is required to take into account the above-mentioned aspect of the matter as well as the gravity of offence and quantum of sentence. 11. It is well-nigh settled law that at pre-conviction stage, bail is a rule and denial of the same should be an exception. The purpose for keeping an accused behind the bars during trial would be to secure his/their presence on the day of conviction and to ensure that he/they may receive the sentence as would be awarded to him/them otherwise, as stated above, it is the rule of crimnal jurisprudence that he/they shall be presumed innocent until his/their guilt is proved. In the instant case, it has been more than three years since the accused were sent to jail and their rights and liberties are getting stifled as they are being kept incarcerated without any progress in the trial. An accused cannot be kept behind bars as an undertrial for an indefinite period. A detailed order dated 27.08.2022 has been passed in this regard by this Court in S.B. Criminal Miscellaneous II Bail Application No. 12906/2022 titled Suraj Vs. State of Rajasthan wherein it has been emphasized that the right of the accused to get a speedy trial is an inalienable fundamental right under Article 21 of Constitution of India. 12. 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 three 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 are in custody, this court feels that they are not supposed to establish a case in support of their innocence rather their 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/them behind the bars for an indefinite period of time pending trial. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioners. 13. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioners as named in the cause title shall be enlarged on bail provided each of them 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 their appearance before the court concerned on all the dates of hearing as and when called upon to do so.