ORDER : FARJAND ALI, J. 1. The jurisdiction of this court has been invoked by way of filing an application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case 1. FIR Number 265/2023 2. Concerned Police Station Balesar 3. District Jodhpur Rural 4. Offences alleged in the FIR Section 8/18 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned order 12.12.2023 2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises. 3. 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. 4. I have heard and considered the submissions made by both the parties and have gone through the material made available by the petitioner alongwith case diary and the factual report submitted with it. 5. It is the case of the prosecution that on 15.10.2023, the Circle Officer received an information through Lakha Ram, Sub-Inspector regarding indulgence of the petitioner Jitendra Singh in the business of Narcotic Drugs. The police team made a raid on 15.10.2023 at 2:00 p.m. at the upper storey of the shop of petitioner Jitendra Singh which is situated in front of CHC, Balesar. The accused apprehended there and upon search, 3.4 kg opium was recovered and accordingly, he was arrested, contraband was seized and whereafter, the accused sent to the judicial custody. 6. It is the submission of the defence that the entire story has been cooked up and a false case has been foisted against the accused petitioner since neither the police team reached at the spot at the time mentioned in the memos, nor any recovery was effected from him as mentioned in the seizure memo. 6. It is the submission of the defence that the entire story has been cooked up and a false case has been foisted against the accused petitioner since neither the police team reached at the spot at the time mentioned in the memos, nor any recovery was effected from him as mentioned in the seizure memo. Indeed, a serious defect in the case of the prosecution has been observed when the time mentioned in the memos prepared by the police is matched with the CCTV footage of the cameras installed in the vicinity, a serious discrepancy was noticed regarding time variance in between the video footage and the time mentioned on the memos; this Court vide order dated 08.02.2024 had directed the D.G.P., Jaipur to instruct for a further investigation of the matter and verification of the proceeding conducted so far. Para Nos.3 to 10 of the said order is being reproduced hereunder for ready reference:- 3. It is appearing from the record that the time of seizure, time of arrest and the time when the police team had arrived at the spot are not matching with the time reflected in the CCTV footage of the bank. It is manifesting from the photographs attached in the file that the timing of the arrival of the police team is around 12.02 p.m. and 12.08 p.m. whereas the petitioner is seen arriving at the spot at 12.25 p.m. in the CCTV footage collected from the bank which would mean that the accused reached the spot after the police team had already reached. Another anomaly in the facts of the case is that it is reflecting from the FIR that the information regarding selling of contraband by the accused was received by the police at 01.00 p.m. on 15.10.2023 and they reached the spot, that is, the room built above the shop of the petitioner at 02.10 p.m. 4. It has been apprised to this Court that when the accused raised this issue before the present IO, he took a pretext that there is difference in the time reflected in the CCTV footage of the bank and the actual time. It has been apprised to this Court that when the accused raised this issue before the present IO, he took a pretext that there is difference in the time reflected in the CCTV footage of the bank and the actual time. In the affidavits submitted on behalf of the I.O. and the Seizing Officer in compliance with the direction passed by this Court in order dated 29.01.2024, it is stated that the time recorded in the CCTV footage was running one hour and twenty minutes behind the actual time. Ordinarily, it does not happen so rather the cameras of the banks are kept updated for the purpose of security. Yet, even if it is considered that there was a difference of one hour and twenty minutes between the actual time at that moment in time and the time which is being reflected in the CCTV footage of the camera installed at the bank, there is a difference of two hours and eight minutes between the two which is more than alleged claimed difference of one hour and twenty minutes. 5. Prima facie, it seems that the very foundation of the case is based upon fake entries and the investigation is not being carried out in proper manner. To protect the case diary from any manipulation and distortion, it is felt appropriate to seize the case diary and the same be taken on record of the court. There’s an old saying that justice should not only be done but it must seem to have been done, thus, in light of the above, it is felt appropriate to bring the matter within the notice of Director General of Police, Jaipur. It is also felt that further investigation in this matter with regard to manipulation of time on memos or fake entries or preparation of false documents be directed to be done by a senior police officer. 6. Every citizen, be he a victim or an accused of a case, has a right to seek and get fair investigation and depriving him of the same would mean depriving the party from his fundamental right. When serious aspersions have been made upon the present I.O. who is a DSP cadre officer and grave incongruency has been noticed in the preparation of memos; this Court feels that the matter should be sent for further investigation to any other officer at a different police range. 7. When serious aspersions have been made upon the present I.O. who is a DSP cadre officer and grave incongruency has been noticed in the preparation of memos; this Court feels that the matter should be sent for further investigation to any other officer at a different police range. 7. In view of the above, the Director General of Police, Jaipur is directed to look into the matter and depute a responsible officer not below the rank of Additional Superintendent of Police to conduct further investigation/de novo investigation in the matter and pass necessary instruction to a senior IPS Officer to supervise the progress of the matter weekly. Since the case diary has been seized by this Court, thus, the new I.O. deputed by the DGP in this matter shall collect the case diary from the Court immediately so that further investigation can be carried out. 8. Needless to say, after conducting investigation, a supplementary report shall be submitted before the trial court. 9. The bail application shall be considered after receipt of progress report. 10. List the matter on 12.03.2024 along with the latest progress report. 7. In pursuance of the order dated 08.02.2024, the investigation was assigned to Shri Vipin Sharma, Addl. Superintendent of Police, Pali, who conducted subsequent investigation so also verification of the aspersions made against the police team while making the seizure and the arrest memos of the accused petitioner. A pretext has been taken by the newly appointed Investigating Officer that the clock of the Cameras installed at the SBI Bank situated near the crime place was not running properly and it was ante-time i.e. 01 hour and 20 minutes. The general presumption would be that the clock of CCTV footage installed at a nationalized bank functions properly. However, presuming for a moment that there was a variation of 01 hour and 20 minutes from the Indian Standard Time still it is observed that there was actual variation of 2:08 hours in between the time mentioned in the display of CCTV cameras. Meaning thereby that even if the cameras of SBI Bank are considered to be running one hour and 20 minutes behind, still then there is a significant difference in the timing because Cameras showing delay of 2 hours and 8 minutes between them, which is allegedly more than one hour and 20 minutes. Meaning thereby that even if the cameras of SBI Bank are considered to be running one hour and 20 minutes behind, still then there is a significant difference in the timing because Cameras showing delay of 2 hours and 8 minutes between them, which is allegedly more than one hour and 20 minutes. The serious aspersion has been raised that the recovery is a farce, cannot be discarded at this stage when the question comes to the liberty of an individual. At a subsequent stage, one another false pretext has taken that the Sub-Inspector Lakha Ram went to the crime place one hour prior to the recovery, for the purpose of recky of the spot does not inspire confidence in view of the fact that nowhere in the Parcha Kayami, seizure memo, arrest memo, report under Section 157 of the NDPS Act or any other document; the act of going of Sub-Inspector Lakha Ram on two occasions at the crime place has been mentioned. This Court feels that indeed a serious dent has occurred in veracity and truthfulness of the story set out in the charge sheet, yet this Court would desist itself from giving any final opinion in this regard since doing so may prejudice the case of either of the parties to the lis and the same shall certainly influence the trial Judge. As on date, this fact cannot be ignored that a significant variance has been noticed in the time of preparation of memos and in the actual timing reflecting in the CCTV footage. At this stage, it cannot be assumed that the seizure memo prepared by the police is a sacrosanct piece of evidence in light of the defects emerged in the case. 8. It is a case of recovery of opium weighing 3.4 Kg, which falls within the category of commercial quantity and bail in such cases cannot be granted unless the twin conditions mentioned under Section 37 of the NDPS Act are satisfied. The first condition of hearing the Public Prosecutor is satisfied since due opportunity has been afforded and even this Court has duly interacted with the present Investigating Officer. The another limb of the embargo contained under Section 37 of the NDPS Act cannot be answered positively in straight forward words as doing so would mean throwing the case of the prosecution on the earth at a nascent stage of the proceeding. The another limb of the embargo contained under Section 37 of the NDPS Act cannot be answered positively in straight forward words as doing so would mean throwing the case of the prosecution on the earth at a nascent stage of the proceeding. In the fitness of the case when altogether a different time from the actual time have been mentioned in all the memos of the police, the possibility cannot be ruled out that neither the compliance of Sections 41, 42, 50, 52-A, 55 of the NDPS Act and the Standing Order 1/1989 issued by the Central Government are strictly complied with nor the seizure and arrest were made exactly in the same fashion as portrayed in the seizure memo and the arrest memo. Whenever a strong arguable case is raised on behalf of the accused and liberty of the accused is on stake, the fetter contained under Section 37 of the NDPS Act would not come in the way of granting bail to the accused because there cannot be direct conflict between the fundamental right guaranteed by the Constitution of India and the statutory bar contained under the penal Statute and whenever such situation arises, the Constitutional Court should tilt towards the protection of right to liberty. A prima facie opinion can be drawn that the accused may not be guilty of the offence as alleged in the charge sheet. 9. Moving further 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 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) 10. 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. 11. 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, more than 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 his innocence rather his 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. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner. 12. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner shall be enlarged on bail provided he 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 his appearance before the court concerned on all the dates of hearing as and when called upon to do so. 13. It is made clear that the observations made herein above are limited for the justifiable disposal of the bail application only and the same would not be taken as a final opinion of this Court at any stage of the trial.