ORDER : RAJENDRA PRAKASH SONI, J. II Bail Application No. 11677/2023 (Suresh Vs. State) 1. Applicant Suresh is arrested and detained in FIR No. 159/2022, registered at Police Station Sambhupura, District Chittorgarh pertaining to the offence punishable under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act (in short, “the Act”) and by the instant petition, he seeks restoration of his liberty on appropriate bail bonds. 2. Earlier, applicant made an endeavor for seeking bail by way of filing first bail application which was disposed of without considering the merits of the case since it was withdrawn with liberty to file afresh after recording the statement of Seizure Officer. 3. I have considered the rival submissions made by the learned counsel for the applicant Suresh as well as learned Public Prosecutor and have perused the material available on record. 4. Learned Public Prosecutor for the State has strongly objected the different submissions made by the learned counsel for the applicant and argued that 273.340 kgs. of Poppy-straw recovered from the applicant falls within the ambit of commercial quantity and the bar as contained in Section 37 of the Act is attracted. He thus craves rejection of the applicant’s bail application. 5. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have perused the record carefully. 6. In the light of arguments raised by the learned counsel for the applicant and on perusal of the record, it would be clear that during the trial of the present case, the statement of Seizure Officer Netram (PW-1) has been recorded by the trial Court. Said statement would reveal that there was, prima facie, non-compliance of mandatory procedure of sampling, which prima facie effects the sanctity and legality of the seizure. Samples for chemical analysis from the seized contraband were drawn on the spot of recovery by Netram (PW-1) himself, in absence of a Magistrate which was clearly in derogation of provisions of Section 52A of the Act and such irregularities, prima facie, malign the seizure proceedings. 7. Samples for chemical analysis from the seized contraband were drawn on the spot of recovery by Netram (PW-1) himself, in absence of a Magistrate which was clearly in derogation of provisions of Section 52A of the Act and such irregularities, prima facie, malign the seizure proceedings. 7. It is also observed that Section 52A of the Act contemplates that where any narcotic drug has been seized and forwarded to the Officer-in-charge of the nearest Police Station, such officer shall prepare an inventory of such narcotic drugs containing all the necessary details and make an application to any Magistrate for the purpose of allowing him to draw representative samples of such drug in the presence of such Magistrate and certifying the correctness of samples so drawn. 8. While dealing the scope of Section 52A of the NDPS Act, Hon’ble the Supreme Court in the case of Mangi Lal Vs. State of Madhya Pradesh, reported in 2023(3) Crimes (SC) 298 held that Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of narcotic drug recovered. This has to be followed through an appropriate application to the Magistrate concerned. The purpose is taking of samples in presence of Magistrate after due certification. The object behind this provision is to have an element of supervision by the Magistrate in taking samples. Therefore, when there is non-compliance of Section 52A of the NDPS Act and where a certification of the Magistrate is lacking, any sampling would not constitute primary evidence. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval for certifying the samples drawn. 9. Hon’ble the Apex Court in the case of Union of India Vs. Mohan Lal & Ors., reported in (2016) 3 SCC 379 , it was held that no sooner seizure is effected and the contraband drug is forwarded to the Officer-in-charge of the Police Station or the other Officer empowered, the Officer concerned is duty bound to approach the Magistrate for the purpose mentioned above including grant of permission to draw representative samples in his presence. Samples drawn will then be enlisted and the correctness of list of samples so drawn is to be certified by the Magistrate. Samples drawn will then be enlisted and the correctness of list of samples so drawn is to be certified by the Magistrate. There is no provision in the Act that mandates taking of samples by the Police Officer himself at the time of seizure. The question of taking samples at the time of seizure which takes place in the absence of Magistrate does not, in the above scheme of things, arises. The process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by the Magistrate to be correct. 10. In view of the above pronouncements of Hon’ble the Apex Court, this Court has perused the record and statement of Netram (PW-1), which proves that the samples were taken immediately after the seizure by SHO Netram (PW-1) himself without there being presence of any Magistrate. The samples drawn in proceedings under Section 52A of the Act, have not been sent to FSL. In view of this Court, prima facie, taking samples from the packets at the time of seizure is not in conformity with the law laid down in the above mentioned pronouncements, which prima facie brings the case of the prosecution under cloud which claims that substance recovered was a contraband. 11. Having considered the material available on record; the arguments advanced by the learned counsel for the applicant particularly, the facts narrated above and the fact that the applicant Suresh is in custody since 04.08.2022; that bail rejection order goes to show that applicant is not involved in any other case under the Act; that trial is likely to take its own considerable time, I do not intent to go into the merits of the matter but of the considered view that the rigor of Section 37 of the NDPS Act is duly satisfied, forasmuch this Court feels that the applicant has available to him substantial grounds so as to question the prosecution case and no useful purpose would be served by keeping the applicant Suresh in detention for an indefinite period, therefore, I am inclined to grant indulgence of bail to the petitioner at this stage. 12. Consequently, this second bail application is allowed. 12. Consequently, this second bail application is allowed. It is ordered that the accused-petitioner-Suresh S/o Meghraj Gadari in F.I.R. No. 159/2022 of Police Station Sambhupura, District Chittorgarh, shall be released on bail subject to his furnishing bail/ surety bonds of sufficient amount to the satisfaction of trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so. This order is subject to the condition that accused, within 7 days of their release and sureties, on the day of furnishing bail, will also furnish details of their all bank accounts, with bank and branch name, in shape of an affidavit, and submit legible copy of their Aadhar cards as well as front page of Bank pass book, for smooth recovery of penalty amount, if there arise a need for recovery of penalty under Section 446 Cr.P.C in future. II Bail Application No. 11348 /2023 (Dinesh Vs. State) 1. Applicant Dinesh is arrested and detained in FIR No. 159/2022, registered at Police Station Sambhupura, District Chittorgarh pertaining to the offence punishable under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act (in short, “the Act”) and by the instant petition, he seeks restoration of his liberty on appropriate bail bonds. 2. Earlier, applicant made an endeavor for seeking bail by way of filing first bail application which was disposed of without considering the merits of the case since it was withdrawn with liberty to file afresh after recording the statement of Seizure Officer. 3. I have considered the rival submissions made by the learned counsel for the applicant Dinesh as well as learned Public Prosecutor and have perused the material available on record. 4. Learned Public Prosecutor for the State has strongly objected the different contentions made by the learned counsel for the applicant and submitted that the contraband recovered from the co-accused Suresh falls within the ambit of commercial quantity and the bar as contained in Section 37 of the Act is attracted. It is further argued that the applicant Dinesh was also travelling in the same car with co-accused Suresh but after seeing the police party, he ran away from the spot. Suresh informed the name of the person, who ran away from the spot as applicant Dinesh. He thus, craves rejection of the applicant’s bail application. 5. It is further argued that the applicant Dinesh was also travelling in the same car with co-accused Suresh but after seeing the police party, he ran away from the spot. Suresh informed the name of the person, who ran away from the spot as applicant Dinesh. He thus, craves rejection of the applicant’s bail application. 5. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have perused the record carefully. 6. In the light of arguments raised by the learned counsel for the applicant and on perusal of the record, it would be clear that during the trial of the present case, the statement of Seizure Officer Netram (PW-1) has been recorded by the trial Court. Said statement would reveal that there was, prima facie, non-compliance of mandatory procedure of sampling, which prima facie effects the sanctity and legality of the seizure. Samples for chemical analysis from the seized contraband were drawn on the spot of recovery by Netram (PW-1) himself, in absence of a Magistrate which was clearly in derogation of provisions of Section 52A of the Act and such irregularities, prima facie, malign the seizure proceedings. 7. It is also observed that Section 52A of the Act contemplates that where any narcotic drug has been seized and forwarded to the Officer-in-charge of the nearest Police Station, such officer shall prepare an inventory of such narcotic drugs containing all the necessary details and make an application to any Magistrate for the purpose of allowing him to draw representative samples of such drug in the presence of such Magistrate and certifying the correctness of samples so drawn. 8. While dealing the scope of Section 52A of the NDPS Act, Hon’ble the Supreme Court in the case of Mangi Lal Vs. State of Madhya Pradesh, reported in 2023(3) Crimes (SC) 298 held that Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of narcotic drug recovered. This has to be followed through an appropriate application to the Magistrate concerned. The purpose is taking of samples in presence of Magistrate after due certification. The object behind this provision is to have an element of supervision by the Magistrate in taking samples. This has to be followed through an appropriate application to the Magistrate concerned. The purpose is taking of samples in presence of Magistrate after due certification. The object behind this provision is to have an element of supervision by the Magistrate in taking samples. Therefore, when there is non-compliance of Section 52A of the NDPS Act and where a certification of the Magistrate is lacking, any sampling would not constitute primary evidence. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval for certifying the samples drawn. 9. Hon’ble the Apex Court in the case of Union of India Vs. Mohan Lal & Ors., reported in (2016) 3 SCC 379 , it was held that no sooner seizure is effected and the contraband drug is forwarded to the Officer-in-charge of the Police Station or the other Officer empowered, the Officer concerned is duty bound to approach the Magistrate for the purpose mentioned above including grant of permission to draw representative samples in his presence. Samples drawn will then be enlisted and the correctness of list of samples so drawn is to be certified by the Magistrate. There is no provision in the Act that mandates taking of samples by the Police Officer himself at the time of seizure. The question of taking samples at the time of seizure which takes place in the absence of Magistrate does not, in the above scheme of things, arises. The process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by the Magistrate to be correct. 10. In view of the above pronouncements of Hon’ble the Apex Court, this Court has perused the record and statement of Netram (PW-1), which proves that the samples were taken immediately after the seizure by SHO Netram (PW-1) himself without there being presence of any Magistrate. The samples drawn in proceedings under Section 52A of the Act, have not been sent to FSL. The samples drawn in proceedings under Section 52A of the Act, have not been sent to FSL. In view of this Court, prima facie, taking samples from the packets at the time of seizure is not in conformity with the law laid down in the above mentioned pronouncements, which prima facie brings the case of the prosecution under cloud which claims that substance recovered was a contraband. 11. This Court is also of the prima facie view that no recovery was made from the actual physical possession of applicant Dinesh and he was not present on the spot at the time of alleged recovery. Except the information furnished by the co-accused Suresh, there is no substantive evidence against the present petitioner Dinesh to connect him with the alleged crime. 12. Having considered the material available on record; the arguments advanced by the learned counsel for the applicant Dinesh, particularly, the facts narrated above and the fact that the applicant Dinesh is in custody since 10.11.2022; that bail rejection order goes to show that applicant is not involved in any other case under the Act; that trial is likely to take its own considerable time, I do not intent to go into the merits of the matter but of the considered view that the rigor of Section 37 of the NDPS Act is duly satisfied, forasmuch this Court feels that the applicant has available to him substantial grounds so as to question the prosecution case and no useful purpose would be served by keeping the applicant Dinesh in detention for an indefinite period, therefore, I am inclined to grant indulgence of bail to the petitioner at this stage. 13. Consequently, this second bail application is allowed. It is ordered that the accused-petitioner-Dinesh S/o Jamna Lal Gadri in F.I.R. No. 159/2022 of Police Station Shambhupura, District Chittorgarh, shall be released on bail subject to his furnishing bail/surety bonds of sufficient amount to the satisfaction of trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so. This order is subject to the condition that accused, within 7 days of their release and sureties, on the day of furnishing bail, will also furnish details of their all bank accounts, with bank and branch name, in shape of an affidavit, and submit legible copy of their Aadhar cards as well as front page of Bank pass book, for smooth recovery of penalty amount, if there arise a need for recovery of penalty under Section 446 Cr.P.C in future.