ORDER : Farjand Ali, J. 1. The jurisdiction of this Court has been invoked by way of filing application under Section 439 Cr.P.C. 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 121/2023 2. Concerned Police Station Dechu 3. District Jodhpur 4. Offences alleged in the FIR Under Sections 8 /15, 25 of the NDPS Act 5. Offences added, if any -- 2. The concise fact of the case is that on 11.09.2023, Aswhok Kumar SHO PS Gumanpura alongwith his team during nakabandi intercepted a Bolero Camper No.RJ19 GH7398, which was driven Vilkas. During search, in all ten plastic sacks of poppy husk got recovered. The total weight of these sacks was 122.7 Kg. After usual process, a case under Section 8 /15 & 25 was registered, the petitioner was arrested. His first and second bail applications being SBCRLMB No.9923/2024 and 16118/2024 were dismissed by this Court vide orders dated 28.08.2024 & 20.01.2025. Hence the instant bail application. 3. 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. He further submits that the petitioner is behind the bars for last two years and he is not having any criminal antecedent. He further submits that the seizing officer had not informed about the compelling reasons for which they conducted search and seizure after sunset which is mandatory under Section 42 of NDPS Act and thus, the entire process of recovery stands vitiated on this count because of non-compliance of Section 42 of NDPS Act . The petitioner is behind the bars around two years. 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 considered the submissions made by both the parties and have perused the material available on record. 5. 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 considered the submissions made by both the parties and have perused the material available on record. 5. Perusal of the record revealing that the petitioner is behind the bars since 11.09.2023 and the co-accused Bhanwarsingh @ Balwantaram has already been enlarged on bail vide order dated 01.07.2024 passed in S.B. Criminal Misc. II Bail Application No. 6656/2024. Further the circumstances surrounding the recovery, as projected by the prosecution, are rendered doubtful owing to material lapses attributable to the police team. It stands admitted in cross-examination by the seizing officer himself that no compliance with Section 42 (1) of the NDPS Act was effected. No prior intimation was supplied to superior officers, nor were the reasons recorded which could have justified dispensing with a search warrant or authorisation. 5.1. The mandatory safeguard envisaged in the second proviso to Section 42 (1): requiring an empowered officer to record the grounds of belief and communicate the same forthwith to his immediate superior before undertaking a warrantless search between sunset and sunrise was wholly disregarded. The NDPS Act , being a stringent and draconian legislation, obligates strict and literal adherence to its procedural mandates. 5.2. In State of Rajasthan v. Jagraj Singh @ Hansa [(2016) 11 SCC 687], the Hon’ble Supreme Court unequivocally held that total non-compliance with Section 42 (1) is fatal to the prosecution and such compliance is mandatory. In the present case, the admitted omission strikes at the root of the prosecution’s case. 5.3. Apart from this, allegations of breaches of Rules 3, 8, 9 and 13 of the NDPS Rules, 2022, as well as disregard of Standing Orders Nos. 1/1988 and 1/1989, further cast a serious shadow on the integrity of the seizure and the probative worth of the FSL report. If these contentions are ultimately upheld, the conviction of the accused would not be sustainable, given that the evidentiary foundation itself would stand eroded. Though Section 37 of the NDPS Act imposes stringent conditions upon the grant of bail in cases involving commercial quantity of contraband, such statutory restrictions cannot obliterate the fundamental right to personal liberty and speedy trial guaranteed under the Constitution. Though Section 37 of the NDPS Act imposes stringent conditions upon the grant of bail in cases involving commercial quantity of contraband, such statutory restrictions cannot obliterate the fundamental right to personal liberty and speedy trial guaranteed under the Constitution. Where a conflict arises between statutory rigour and constitutional safeguards, the latter must prevail. 5.4. The expression “reasonable period” of pre-trial detention, in the context of a sessions case, cannot be stretched indefinitely. Ordinarily, such trials ought to conclude within one year, and even upon an elastic interpretation, no more than two years can be justified. To permit continued incarceration beyond this would convert preventive custody into punitive detention, which is impermissible in law. 5.5. Criminal jurisprudence in India rests upon the presumption of innocence until guilt is established through trial. The purpose of keeping an accused in custody is limited to securing his presence and affording the prosecution an opportunity to prove its case. That opportunity, however, cannot be prolonged ad infinitum, for doing so would amount to an infringement of fundamental rights. 6. 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. 7. Considering the totality of the facts and circumstances of the case, it is of particular significance that the petitioner has remained in continuous incarceration since 11.09.2023 and he is not having any other criminal antecedent except the present one. The fact that the co-accused, namely, Bhanwarsingh @ Balwantaram, has already been enlarged on bail further fortifies the petitioner’s claim for parity. When this is juxtaposed with the admitted non-compliance of the mandatory provisions of Section 42 of the NDPS Act , coupled with the additional procedural infirmities alleged in the seizure process, and the undeniable reality of protracted pre- trial detention, this Court is persuaded to hold that the case falls within the exceptional category warranting the grant of bail. 7.1. When this is juxtaposed with the admitted non-compliance of the mandatory provisions of Section 42 of the NDPS Act , coupled with the additional procedural infirmities alleged in the seizure process, and the undeniable reality of protracted pre- trial detention, this Court is persuaded to hold that the case falls within the exceptional category warranting the grant of bail. 7.1. At the same time, it is imperative to underscore that the present determination is strictly circumscribed to the adjudication of the instant bail application. The observations made herein are prima facie in nature and shall not, in any manner, prejudice the rights of either party or fetter the discretion of the learned trial court while assessing the evidence during the course of trial. The trial court shall proceed uninfluenced by any remarks contained in this order and shall determine the matter solely on the basis of evidence adduced before it. 8. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title 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.