ORDER : Farjand Ali, J. 1. The jurisdiction of this court has been invoked by way of filing an instant applications 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 402/2022 2. Concerned Police Station Nimbahera Sadar 3. District Chittorgarh 4. Offences alleged in the FIR Section 8/15 of the NDPS Act 5. Offences added, if any Section 8/29 of the NDPS Act 6. Date of passing of impugned 15.05.2024 orders 2. The first and second bail applications of petitioners came to be dismissed as not pressed by this Court vide orders dated 08.12.2023, 24.11.2023 and 15.03.2024 passed in SBCRLMB Nos.9486/2023, 13689/2023, 1362/2024 & 1744/2024. Now, seizing officer has been examined, hence the present third bail application. 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 submits that the contraband was recovered on 28.09.2022 and the samples were taken on that same day, however, the samples were sent for FSL on 11.10.2022 that is after more than 44 days. There are several flaws and laches in the case of the prosecution. 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 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 recovered contraband is way above the demarcated commercial quantity and therefore, in view of the bar contained under Section 37 of NDPS Act, no case of bail is made out. 5. Have considered the submissions made by both the parties and have perused the material available on record. 6. Perusal of the record revealing that on 28.09.2022 during nakabandi Incharge Sadar Nimbahera intercepted an Alto Car bearing registration No.RJ12 CB3545 near the Wonder Circle. The vehicle was being driven by Lokendra Singh @ Lucky and Praveen Singh @ Chirag was also found sitting there. During search, 5 plastic bags containing poppy husk were recovered. The total weight of these bags was 100 kg. The vehicle was being driven by Lokendra Singh @ Lucky and Praveen Singh @ Chirag was also found sitting there. During search, 5 plastic bags containing poppy husk were recovered. The total weight of these bags was 100 kg. After search and seizure, the petitioners were arrested and seized contraband was marked as A to E but the same were sent to the FSL on 11.10.2022. No inventory was prepared and verified in the presence of the Magistrate as per the provision of Section 52A of the NDPS Act but the samples so verified were not sent for scientific investigation within 72 hours however, the same were actually sent after expiry of a period of approx 44 days were the ones that were drawn at the initial stage of conducting seizure. 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 their 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 their liberty. 7. In a recent 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 P-11) is nothing but a waste paper and cannot be read in evidence.” 8. 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.” 8. In this instant matter too, the alleged contraband was seized on 28.09.2022, 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. 9. 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. Uptill now, out of 22 witnesses only 3 witnesses could have been examined. 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. 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) 10. 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. 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 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 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. 11. Accordingly, the instant bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners 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.