ORDER : (T. Mallikarjuna Rao, J.) 1. This Criminal Petition is filed by Petitioner/Accused No.2 under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C’) seeking regular bail against Crl.M.P.No.14 of 20224 in NSC.No.6 of 2024 [in C.No.VIII/10/20/2023-Prev, on the file of Customs Commissionerate (Preventive), Vijayawada] on the file of II Additional District Judge-cum- Metropolitan Sessions Judge Court, Vijayawada (for short, ‘Special Court’), registered for the offences punishable under sections 20, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’). 2. The Prosecution outlines that on receipt of credible information received by the Additional Commissioner of Customs, Customs Commissionerate (Preventive) Vijayawada, the Inspector of Customs, on the even date of 24.06.2023 secured two witnesses and laid a route watch opposite to Reliance Trends store, Prasadampadu, Vijayawada and intercepted a white colour Maruti Suzuki Swift Dzire car bearing No.MH 03 BC 1345 and found four persons therein. Petitioner/A.2 was found in the said car beside the driving seat. Later on search of the car, the Inspector of Customs found 46 packets of Ganja weighing about 94.209 kgs, and subsequently, found one TATA Intra V30 van bearing No.TS08 UH 6790 and found two persons therein and on search of the said van, 29 bags of Ganja weighing 311.020 kgs were recovered. After the seizure of the contraband and the aforesaid two vehicles on 25.06.2023, the Customs officials recorded the statement of the accused under section 67 of the NDPS Act and arrested him on 26.06.2023. Based on the application of the Superintendent of Customs, the IV Additional Chief Metropolitan Magistrate, Vijayawada, has issued a Section 52A inventory certificate on the even date of 22.07.2023. 3. Based on the application of the Superintendent of Customs, the IV Additional Chief Metropolitan Magistrate, Vijayawada, has issued a Section 52A inventory certificate on the even date of 22.07.2023. 3. Learned Counsel for the Petitioner/Accused contends that Petitioner is innocent and has been falsely implicated in this case; Respondent has not followed the mandatory procedure enumerated under section 52A (2) of NDPS Act; the inventory certificate issued by learned Magistrate on 22.07.2023 is silent about the drawing of samples in his presence; Petitioner preferred a bail petition in Crl.M.P.No.14 of 2024 in NSC No.6 of 2024 before the learned Special Court and the same was dismissed on 09.02.2024; the investigation in the present case is completed and the charge sheet is filed by the Respondent-Police and the same is numbered as NSC.No.6 of 2024 on the file of Special Court; hence, there is no question of tampering witnesses and evidence in the event of enlargement of the Petitioner on bail; Petitioner is ready to produce the sufficient sureties. 4. Learned Assistant Public Prosecutor filed a counter-affidavit, contending that the purported contraband in question constitutes a substantial commercial quantity; A.1 to A.6 were arrested on 26.06.2023 under section 42 of NDPS Act; the customs officials has very strictly followed procedures of NDPS Act and have also recorded the sworn statements of Accused persons; the Accused persons admitted to their respective role in the illicit dealing of Ganja and they have also admitted to the contents of the panchanama dated 25.06.2023; Inventory and sampling proceedings were conducted before the concerned Magistrate of Vijayawada and the Customs Revenues Control Laboratory (CCRL), Chennai and Chemical Analysis Reports confirmed that the “the samples are Cannabis (Ganja) and is covered under NDPS Act”; A.1 to A.6 have got knowledge about the illegal transportation of Ganja in two vehicles and therefore, section 35 of NDPS Act is applicable and the accused are liable to be punished; the Special Court, while dismissing the bail application, has observed that as huge quantity of contraband is seized, bar under section 37 of NDPS Act applies to the present case; there are no reasonable grounds to conclude that the Petitioner is not guilty of an offence under NDPS Act to get relief of enlargement on bail; if the Petitioner/A.2 is released on bail with some terms and conditions, it will be difficult to secure his presence at the time of trial. Hence, he prayed to dismiss the Criminal Petition. 5. I have heard both sides. Learned counsel on both sides reiterated their submissions on par with the contentions presented in the petition as well as in the report. 6. Learned counsel for the Respondent relied on the decision in State of Kerala v. Rajesh, (2020) 12 SCC 122 , wherein, the Hon’ble Apex Court held that: 17. The jurisdiction of the court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case 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. It is the mandate of the legislature which is required to be followed. At this juncture, a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and nonbailable. It reads thus: “37. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of subsection (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. 7. Learned counsel for the Respondent further relied on the decision in State of M.P. v. Kajad, (2001) 7 SCC 673 , wherein the Hon’ble Apex Court held that: 5…………………………………Negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for. 8. The learned counsel for the Petitioner contends that the material relied on by the Prosecution would indicate that there was no compliance with the provisions of section 42 of the NDPS Act. Liberal approach in the matter of bail under the Act is uncalled for. 8. The learned counsel for the Petitioner contends that the material relied on by the Prosecution would indicate that there was no compliance with the provisions of section 42 of the NDPS Act. The Respondent-State did not reduce the advance information into writing and forward it neither to its superior officers nor to the Hon’ble Court which vitiated the very case of prosecution. Whereas, in the counter, the State-Respondent contends that the Department has strictly followed the procedure contemplated under section 42 of the NDPS Act. 9. Learned counsel for the Respondent relied on a decision in Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100 , wherein the Hon’ble Apex Court held that: 31. Another submission that has been raised by the counsel for the respondent both before the High Court and this Court is that due to non-compliance of the procedural requirement under Section 42 of the NDPS Act [“42. Power of entry, search, seizure and arrest without warrant or authorisation.—(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act ….(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”] , the respondent should be granted bail. Section 42 provides that on the receipt of information of the commission of an offence under the statute, the officer will have to write down the information and send it to a superior officer within 72 hours. Section 42 provides that on the receipt of information of the commission of an offence under the statute, the officer will have to write down the information and send it to a superior officer within 72 hours. It has been submitted by the respondent that though the information was received by the Zonal Director, the information was put down in writing by an officer who was a part of the team constituted on the receipt of the information. The written information was then sent to the Zonal Director. This Court Karnail Singh v. State of Haryana, (2009) 8 SCC 539 held that though the writing down of information on the receipt of it should normally precede the search and seizure by the officer, in exceptional circumstances that warrant immediate and expedient action, the information shall be written down later along with the reason for the delay. 32. Further, it was held that the issue of whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact. The decision in Karnail Singh v. State of Haryana, (2009) 8 SCC 539 was recently followed by this Court in Boota Singh v. State of Haryana, (2021) 19 SCC 606 . 10. After careful reading of the material on record and considering the submissions made on behalf of both sides, by following the principles laid down in the said decision, this Court is of the view that the contentions now raised by the Petitioner in this regard can be considered only at the time of trial. 11. The learned counsel for the Petitioner contends that the Respondent- State has not followed the procedure under section 52A(2) and relied on the decision in Simaranjit Singh vs. State of Punjab, 2023 LawSuit(SC) 859, wherein the Hon’ble Apex Court held that: Sub-section (3) of Sec.52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with subsections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Union of India v. Mohanlal & Anr, (2016) 3 SCC 379 . This creates a serious doubt about the prosecution's case that substance recovered was a contraband. Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt. Accordingly, we set aside the impugned judgments insofar as the present appellant is concerned and quash his conviction and sentence. The appeal is accordingly allowed. 12. To show the compliance of the provisions of Section 52A of NDPS Act, the Respondent-State has relied on the copy of the inventory certificate issued by the learned IV Additional Chief Metropolitan Magistrate, Vijayawada, wherein, it is stated that as per application under section 52A of NDPS Act, 1985 along with Annexure 1, Form-4, Form-5 filed by the Superintendent of Customs, Customs Commissionerate (Preventive), Vijayawada, the weight of the property (gross weight) is 405.229 kgs; after weighing the weight of the property is 405.155 kg. 13. Form-IV shows that the Superintendent of Customs, Customs Commissionerate (Preventive) Vijayawada, applied to the learned IV Additional Chief Metropolitan Magistrate, under sub-section (2) section 52A of the NDPS Act, to certify the inventory and sub-section (3) of that section requires any Magistrate to whom an application is made to allow the application and certify the inventory as required. 13. Form-IV shows that the Superintendent of Customs, Customs Commissionerate (Preventive) Vijayawada, applied to the learned IV Additional Chief Metropolitan Magistrate, under sub-section (2) section 52A of the NDPS Act, to certify the inventory and sub-section (3) of that section requires any Magistrate to whom an application is made to allow the application and certify the inventory as required. Form-V shows that the Superintendent of Customs, requested to certify the correctness of the inventory; permit taking, in the presence of Magistrate, photographs of the seized items in the inventory and certify such photographs as true; and allow drawing of representative samples in the presence of Magistrate and clarify the correctness of the list of samples so drawn. 14. By considering the above documents, this Court is unable to accept the Petitioner’s contention that the Respondent-State has not complied with the provisions of Section 52A(2) of NDPS Act. 15. A coordinate bench of the Hon'ble Supreme Court in Arvind Yadav V. Govt. of NCT of Delhi in Bail Appln.1416/2021 decided on 06th July 2021 relying upon the Judgment of the Hon'ble Supreme Court in Union of India V. Mohanlal and Anr., (2016) 3 SCC 379 had rejected bail on the grounds of non-compliance with the provisions of Section 52A of the NDPS Act. The relevant paragraph of Arvind (supra) is set out below: 13. By this petition, the petitioner seeks bail on the ground of noncompliance with Section 52A of the NDPS Act; however, because the trial does not stand vitiated by drawing the samples at the spot in the absence of a Magistrate for being sent to FSL analysis for filing an appropriate charge-sheet before the Special Court for ascertaining the nature of contraband and whether the sanctity of drawing the samples was vitiated for the non-presence of the Magistrate would be an issue to be seen during trial. Hence this Court finds no ground to grant bail to the petitioner on this ground. 16. As per the Prosecution’s case, A.1 was driving the Maruti Suzuki Swift Dzire Car bearing registration No.MH03 BC 1345, along with him, A.2, A.3 and A.5 were also present in the car; A.4 was driving the Tata Intra V30 bearing registration No.TS08 UH 6790, along with him, A.4 and A.6 were also present in the car. The customs officials questioned whether the Accused concealed anything in the vehicle, for which, they replied in negative. The customs officials questioned whether the Accused concealed anything in the vehicle, for which, they replied in negative. The customs officials thoroughly searched the vehicles and found onion bags in it and found the Ganja of 203.306 kgs. The knowledge of the possession of contraband can be gleaned from the facts and circumstances of the case. The standard of conscious possession would be different in the case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. 17. It is prima facie established from the record that the Petitioner was travelling in the vehicle; the quantity of contraband found in the vehicle is of commercial quantity. In the said facts of the case, this Court prima facie finds it difficult to accept the Petitioner’s contention that he has been falsely implicated in the case. This Court finds that at this stage of the case, all that could be seen is, whether the statements made on behalf of the Prosecution witnesses, if believable would result in the conviction of the petitioner or not. At this juncture, this Court cannot say that accused is not guilty of the offence, if the allegations made are established. 18. It is settled law that where a huge commercial quantity of contraband is involved, the Accused would indulge in activities which are lethal to society. Therefore, it would certainly be in the interest of society to keep such behind bars during the pending investigation. 19. As seen from the orders passed in Crl.M.P.No.14 of 2024 in N.S.C.No.6 of 2024, the Petitioner has raised the same conditions in a bail application moved before Metropolitan Sessions Judge-cum-Special Judge for trial of NDPS Act Cases, Vijayawada, the learned Sessions Judge dismissed the petition by observing that it is just to commence the trial to decide the case on merits instead of granting bail to the Petitioners pending trial. It seems that the learned Special Court has commenced the trial and since the Petitioner has been in judicial remand from 27.06.2023 onwards, this Court deems fit to direct the Special Court to dispose of the matter, as expeditiously as possible. 20. It seems that the learned Special Court has commenced the trial and since the Petitioner has been in judicial remand from 27.06.2023 onwards, this Court deems fit to direct the Special Court to dispose of the matter, as expeditiously as possible. 20. As more than commercial quantity is involved and the involvement of A.2 is visible and given the foregoing reasons and principles laid down in the judgment of the Hon'ble Apex Court referred to supra, this court finds no grounds to enlarge the Petitioner on bail, at this stage, consequently, the petition is liable to be dismissed. 21. Needless to say, any observations made herein above are only to decide this application. The main case will be decided on merits by the learned trial Court without getting influenced by any such observations made in the present order. 22. Accordingly, the Criminal Petition is dismissed. Miscellaneous applications pending, if any, shall stand closed.