ORDER : (Farjand Ali, J.) 1. The jurisdiction of this Court has been invoked by way of filing an instant third bail 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 341/2021 2. Concerned Police Station Sadar Chittorgarh 3. District Chittorgarh 4. Offences alleged in the FIR Section 8/15 of the NDPS Act 5. Offences added, if any -- 2. The previous two bail applications has been rejected by this Court. The first bail application was dismissed vide order dated 24.08.2023 passed in SBCRLMB No.9590/2023 and SBCRLMB No.4542/2023 with liberty to file afresh after statement of Seizing Officer. The second bail application of petitioners came to be disposed of by this Court vide order dated 09.04.2024 passed in SBCRLMB No.2389/2024 and SBCRLMB No.1414/2024 with liberty to renew the prayer for bail in the month of July, 2024 with better particulars. Now, the statement of the Seizing Officer has been completed as PW-2. Hence, the instant 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. If the seizure of the contraband is not made as per the legal provision then the embargo contained under Section 37 of the NDPS Act is not applicable. 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 petitioners, learned Additional Government Advocate 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 vehicle was intercepted on 27.11.2021. The police team of Police Station Sadar Chittorgarh seized the vehicle (Eicher Truck) bearing No.RJ-09-GD-0445 in which 487 kg 600 gm poppy husk was found. The contraband was seized. They were arrested on 27.11.2021 and since then they are in judicial custody. There are total 25 witnesses, out of which 6 has been examined till now and 3 years have been elapsed, thus, this Court feel persuaded to hear the bail application on merits. 7. The contraband was seized. They were arrested on 27.11.2021 and since then they are in judicial custody. There are total 25 witnesses, out of which 6 has been examined till now and 3 years have been elapsed, thus, this Court feel persuaded to hear the bail application on merits. 7. Prima facie, it is revealing that the seizure had not been made in accordance with the provision contained under Section 52-A of the NDPS Act and the standing order Nos.1/1988 & 1/1989 issued by the Government of India. The samples were taken by Seizing Officer at the spot whilst as per the provision, the samples were supposed to be taken in the presence of a Magistrate while making inventory. Admittedly, the samples taken at the spot were sent to the FSL and no samples were collected during inventory before a Magistrate. No inventory was prepared and verified in the presence of the Magistrate as per the provision of Section 52A of the NDPS Act and the samples so verified were not sent for scientific investigation. As per the mandate of law, the samples taken in the presence of a Magistrate should be sent to the Forensic Laboratory. Not making inventory in accordance with the guidelines issued by the Government issued 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 won’t be possible to be made since the report of FSL regarding samples taken at the spot by the Seizing Officer would not be sufficient. There is a blatant non-compliance of Section 52-A. 8. 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. 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.” 9. In this instant matter too, the alleged contraband was seized on 27.11.2021, 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. 10. Another aspect for consideration of the bail plea would be that this Court is of the view that for the purpose of proving charge only a reasonable period can be granted to the prosecution while keeping an accused behind the bars. Still the guilt is to be proved and as per the theory of Criminal Jurisprudence, he shall be presumed innocent until the guilt is proved. In a Sessions case, a trial ought to have commenced and completed within a Session i.e. one year. When some unavoidable circumstances are considered than it can be doubled, however in any case a person cannot be detained for the purpose of giving an opportunity to the prosecution to substantiate the charge as is not desirable under the law. Right to have speedy trial is guaranteed by the Constitution of India and herein this case the same has been infringed owing to lackadaisical behavior of the prosecution party in not presenting the witness in the trial within a reasonable period. 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. 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 petitioners are 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 them. 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. 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. 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. 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. 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) 12. 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. 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, 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 application, 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. 14. Considering the overall facts and circumstances of the case and the fact that out of total 25 witnesses till date only six witnesses could have been examined and it can be speculated that a further more time will be consumed in reaching to the conclusion of the trial and looking to the three years custody of the petitioners pending trial, it is felt appropriate to accept the third bail application both on merits as well as on period of long incarceration. In light of these facts and circumstances, it is deemed suitable to grant the benefit of bail to the petitioners in the present matter. 15. In light of these facts and circumstances, it is deemed suitable to grant the benefit of bail to the petitioners in the present matter. 15. Accordingly, the instant third 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 furnish 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.