ORDER : Farjand Ali, J. 1. The jurisdiction of this court has been invoked by way of filing the instant bail 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 01/2023 2. Concerned Police Station CBN Singoli 3. District Chittorgarh 4. Offences alleged in the FIR Section 8/18(b) & 29 of the NPDS Act 5. Offences added, if any - 6. Date of passing of impugned order 09.04.2025 2. In nutshell, the facts of the case are that on 03.03.2023, Sonu, SI, CBN Singoli along with his team upon receiving an information intercepted a Bus bearing registration No.RJ09 PA3037 and 3 rd seat from the driver seat Petitioner Oma Ram was interrogated and on search being made 4 Kg 350 gms opium was recovered from a bag which was lying on his lap, whereafter he was arrested and a case under Section 8 /18, 29 of the NDPS Act was registered. His first, second and third bail applications being SBCRLMB Nos.14909/2023, 1192/2024 & 15673/2024 were dismissed as not pressed by this Court vide orders dated 23.11.2023, 04.07.2024 & 14.01.2025. Hence, the instant application for bail. 3. It is contended on behalf of the accused-petitioner that the petitioner is arrested in this 03.03.2023, 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. 4. 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. 5. I have heard and considered the submissions made by both the parties and perused the material available on record. 6. Perusal of the record revealing that the petitioner is behind the bars in this case since 03.03.2023. 5. I have heard and considered the submissions made by both the parties and perused the material available on record. 6. Perusal of the record revealing that the petitioner is behind the bars in this case since 03.03.2023. The argument advanced on behalf of the petitioner—that he was allegedly traveling in a bus with a bag placed on his lap, and that subsequently he was made to alight and his bag was taken into custody by the concerned officer, following which the formalities under Section 50 of the NDPS Act were initiated—appears to carry some substance and cannot be outrightly discarded at this stage. 7. Furthermore, out of total 12 projected witnesses only four could have been examined yet. The other grounds with regard to flouting the rules of 3,8,9 & 13 of the NDPS Rules of 2022 and the guidelines issued by the Government issued vide Standings Order Nos.1/1988 & 1/1989 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. 8. 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 and half 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. 9. In Rabi Prakash Vs. State of Odisha passed in Special leave to Appeal (Crl.) No.(s) 4169/2023 : 2023 Supreme(SC) 707 , 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. 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. 10. Considering the overall facts and circumstances of the case, and taking into account the serious submissions advanced regarding non-compliance with the mandatory provisions of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022, it is noted that the said Rules were in force at the relevant time, and there appears to be no strict adherence thereto. The apparent procedural lapses and violations of mandatory statutory provisions may prima facie confer a legitimate ground in favour of the petitioner. The apparent procedural lapses and violations of mandatory statutory provisions may prima facie confer a legitimate ground in favour of the petitioner. However, it is clarified that the above observations are only prima facie in nature and shall not be construed as a conclusive opinion of this Court on the merits of the case. The final determination of these issues shall be made by the learned Trial Court upon appreciation of the entire evidence brought on record during trial. Nevertheless, for the limited purpose of deciding the present bail application, and in view of the submissions and legal contentions raised, this Court deems it appropriate to enlarge the petitioner on bail. 11. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner, named above, 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.