ORDER: FARJAND ALI, J. 1. The jurisdiction of this court has been invoked by way of filing an applications under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below: 2. The facts of the case are that on 05.01.2023, Assistant Sub-Inspector Geeta Chaudhary of Rashmi Police Station informed the Additional Superintendent of Police, Kapasan, via telephone, that while patrolling with a constable from the outpost, they encountered a Scorpio vehicle that collided with their private Swift car (No.RJ-09-CC 4110) and fled after firing shots. Upon searching the vehicle (No.RJ-46-UA-0575) in the presence of witnesses and the police party, 24 plastic sacks containing 456 kilograms of illegal opium poppy husk were seized. The investigation officer, after thorough inquiry, found the accused Ramniwas and Bherulal, to have committed the offence under the NDPS Act. The accused Bheru Lal, arrested 12.11.2024 on the basis of the disclosure statement made by accused Swarupa Ram while in custody. A case under the NDPS Act got registered. Hence, the instant bail applications. 3. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and their 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-petitioners and they have 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 applications 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. (Bail Appln. No.14342/2024) 5.1. It is an admitted fact situation that when a vehicle was intercepted by the police team, no person was found present therein, though it is alleged that two persons were therein the vehicle and exchanged the gun shots with the police party but somehow made their escape good before reaching the team by taking advantage of pitch dark. None was there to say that who were carrying the vehicle in which recovery of contraband alleged to have made. Upon inspection of the area, the police officer collected a slips of Bhavi Tool Plaza and three Fast Track stickers. None was there to say that who were carrying the vehicle in which recovery of contraband alleged to have made. Upon inspection of the area, the police officer collected a slips of Bhavi Tool Plaza and three Fast Track stickers. Alongwith above, the police officer claims to have found one Blue coloured Android Mobile of One Plus company in which two SIMs of Jio Company were inserted. 5.2. Investigation was conducted with the help of IMEI numbers of both the mobile handsets and then it was revealed that a total three SIMs of having numbers i.e. 6367010495, 8302089979 & 8690254083 were ever where used in the handsets. The agency claims that call data records of the phone numbers above were examined and ID was also obtained from the service provider company so as to know the name of the subscribers of the three SIM numbers. The agency claims that the subscriber of two SIM numbers were interrogated but their indulgence was not found and so they were not booked in the matter, however, the requisite record in this regard is not attached with the chargesheet. The agency claims that one SIM having phone No.86902-54083 had been issued in the name of one Smt. Pooja D/o Shyam Lal. The above SIM was in use of the phone handset in between 06.06.2022 to 21.08.2022. The date of incident of this case is 05.01.2023. It is revealing that the subscriber Ms. Pooja was asked through a notice regarding possession of the above mentioned SIM number and strangely at the bottom of the same notice, it is mentioned that though she was the subscriber of that particular SIM number but she had given by it the petitioner Ramniwas for the purpose of chatting with him. Ms. Pooja is aged 22-23 years old young married lady and as per her, the petitioner Ramniwas was her school friend. It is mentioned in the reply of the notice that “she used to talk to Ramniwas hiding the fact with her family and inlaws”. She has written that she used to talk with the petitioner Ramniwas in a clandestine manner on the above number; her signatures are appended on the statement. 5.3. The above is in the form of a statement recorded during investigation like 161 Cr.P.C. accusing someone. She has written that she used to talk with the petitioner Ramniwas in a clandestine manner on the above number; her signatures are appended on the statement. 5.3. The above is in the form of a statement recorded during investigation like 161 Cr.P.C. accusing someone. As per Section 162 Cr.P.C. statements to police not to be signed and no such statement made by any person to a police officer during course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement of record be used for any purpose save as hereinafter provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. 5.4. A bare perusal of the provision contained under Section 162 Cr.P.C. makes it abundantly clear that neither the witnesses nor the investigating agency can take use of such statement which are reduced in writing and signatures are appended on it, however, the accused can take use of such documents with the permission of the Court. In certain circumstances, the prosecution is also made able to make use of such document but only with a limited purpose to contradict such witness in the manner provided under Section 145 of the Indian Evidence Act. The provision has an exception, the above provision does not apply to Clause (1) of Section 32 of the Indian Evidence Act and the same does not effect the provisions of Section 27 of the Evidence Act. 6. Be that as it may, this Court is not supposed to give any final opinion on the reliability of the signed statement of Ms. Pooja or its admissibility in the evidence at this stage owing to the reason that the case is under trial and any comment may certainly influence the Presiding Officer of the Court. 6. Be that as it may, this Court is not supposed to give any final opinion on the reliability of the signed statement of Ms. Pooja or its admissibility in the evidence at this stage owing to the reason that the case is under trial and any comment may certainly influence the Presiding Officer of the Court. However, at the same time, this Court feels that the above mentioned fact and circumstances are the only piece of evidence against the petitioner Ramniwas who is in custody since more than one year, therefore, this Court feels that in light of the quality of the material collected during investigation and connecting the petitioner remotely may be a procedural thing in the prosecution but whether on account of such remote connection, his custody can not be allowed to be prolonged. Earlier, his bail application was dismissed by this Court on the ground that investigation was underway but now the total collection of evidence do not justify his arrest based on the aforementioned facts of statement of Ms. Pooja only. This Court feels that at least, in the given circumstances; the concession of bail should be granted to the petitioner. Record revealing that his indulgence in any similar case was not found. Ms. Pooja was married to one Ashok S/o Budh Ram Suthar way back on 02.02.2019 and at the time of recording her statement, she was aged 22-23 years old. In view of the conflicting statement that she used to talk with the petitioner in a surreptitious manner give rise to a reasonable suspicion that the above was not within the notice of any other person. As per the charge-sheet, the above SIM was used in the seized handset in between 06.06.2022 to 21.08.2022 and whereas the date of incident when the vehicle was intercepted and mobile was seized was 05.01.2023 and as such, the two dates do not remotely connect the petitioner with the alleged charge. 7. Besides the factual situation narrated above, the legal pleas have also been raised at length by learned counsel for the petitioner, it is contended that the seizure was not made in accordance with the guidelines issued vide SO No.1/1989 and so also the same for violation of Rules 3, 8, 9, 13, 15 of the Rules of2022. 8. 7. Besides the factual situation narrated above, the legal pleas have also been raised at length by learned counsel for the petitioner, it is contended that the seizure was not made in accordance with the guidelines issued vide SO No.1/1989 and so also the same for violation of Rules 3, 8, 9, 13, 15 of the Rules of2022. 8. It would be worthwhile to mention here that by virtue of powers given under Section 52-A r.w. Section 76 of the NDPS Act, the Central Govt. Department of Finance issued a Gazette Notification dated 23.12.2022 regarding classification, seizing, sealing, storing, taking samples of the contraband etc. called as Narcotic Drugs and Psychotropic Substances (seizure, search, sampling and disposal), Rules 2022 (hereinafter referred as ‘the Rules of 2022’). The said Rule came into force from 23.12.2022. It would be relevant to reproduce certain provisions, which are as under:- 3. Classification of seized material. – (1) The narcotic drugs, psychotropic substances and controlled substances seized under the Act shall be classified based on physical properties and results of the drug detection kit, if any, and shall be weighed separately. (2) If the narcotic drugs, psychotropic substances and controlled substances are found in packages or containers, such packages and containers shall be weighed separately and serially numbered for the purpose of identification. (3) All narcotic drugs, psychotropic substances and controlled substances found in loose form shall be packed in tamper proof bag or in container, which shall be serially numbered and weighed and the particular of drugs and the date of seizure shall also be mentioned on such bag or container: Provided that bulk quantities of ganja, poppy straw may be packed in gunny bags and sealed in such way that it cannot be tempered with: Provided further that seized concealing material such as trolley bags, backpack and other seized articles shall be sealed separately. (4) The classification, weighing, packaging and numbering referred to in this sub-rule shall be done in the presence of search witnesses (Panchas) and the person from whose possession the drugs and substances was recovered and a mention to this effect shall invariably be made in the panchnama drawn on the spot of seizure. (5) The detailed inventory of the packages, containers, conveyances and other seized articles shall be prepared and attached to the panchnama. 6. ……… 7. …….. 8. Application to Magistrate. (5) The detailed inventory of the packages, containers, conveyances and other seized articles shall be prepared and attached to the panchnama. 6. ……… 7. …….. 8. Application to Magistrate. – After the seized material under the Act is forwarded to the officer-in- charge of the nearest police station or to the officer empowered under section 53 of the Act or if it is seized by such an officer himself, he shall prepare an inventory of such material in Form-4 and apply to the Magistrate, at the earliest, under sub-section (2) of section 52A of the Act in Form-5. 9. Samples to be drawn in the presence of Magistrate. – After application to the Magistrate under sub-section (2) of section 52A of the Act is made, the Investigating Officer shall ensure that samples of the seized material are drawn in the presence of the Magistrate and the same is certified by the magistrate in accordance with the provisions of the said-sub-section. 10. …….. 11. …….. 12. …….. 13. Despatch of sample for testing . – (1) The samples after being certified by the Magistrate shall be sent directly to any one of the jurisdictional laboratories of Central Revenue Control Laboratory, Central Forensic Science Laboratory or State Forensic Science Laboratory, as the case may be, for chemical analysis without any delay. (2) The samples of seized drugs or substances shall be despatched to the jurisdictional laboratories under the cover of the Test Memo, which shall be prepared in triplicate, in Form-6. (3) The original and duplicate of the Test Memo shall be sent to the jurisdictional laboratory alongwith the samples and the triplicate shall be retained in the case file of the seizing officer. A combined reading of Rules 3, 8, 9 & 13 of the Rules of 2022 manifesting that after seizure of the contraband, the officer has to move an application to the Magistrate and whereafter, the samples are supposed to be taken in his presence and whereafter the verified samples are supposed to be sent to the Forensic Laboratory for the purpose of detection of any Narcotic Drugs and Psychotropic Substance in the seized article. Ostensibly, no such task has been undertaken in this case and thus, it would be a serious question of law as to whether the FSL report of the samples taken from the spot can be treated as a decisive piece of evidence to substantiate the charge so as to punish him under the NDPS Act. 9. Admittedly, the mandatory compliance of Section 52-A of the NDPS Act have also been seriously raised as in the case at hand, the samples which were sent to the FSL were not sent after getting verification from the Magistrate as envisaged under the Rules of 2022 aforesaid which is direct contravention of the Rules of 2022. Thus it is argued that the recovery vitiates on this count alone since the chemical examiner report will not be sufficient to prove recovery of contraband from the possession of the petitioner and prima facie, this Court feels that the plea has a substance and is appreciable but since the trial is still pending, therefore, I wouldn’t like to give definite and final opinion in this regard as the same may influence the course of trial, however, keeping the above in mind, I feel that the embargo contained under Section 37 of the NDPS Act will not come in the way of granting bail to the petitioner. 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. ……………………….( Bail Appln. No.167/2025) 11. So far as the bail application of accused Bheru Lal is concerned suffice it would be to state that this man has been booked in the matter and arrested merely on the basis of the confessional statement made by accused Ramniwas to a police officer while in police custody. There is no corroborating, supporting or clinching material against him to substantiate the charge except the confessional statement of Ramniwas and admissibility of which would be a seriously contesting legal issue. There is no corroborating, supporting or clinching material against him to substantiate the charge except the confessional statement of Ramniwas and admissibility of which would be a seriously contesting legal issue. The said Ramniwas has been given benefit of concession of bail and thus, the case of the petitioner Bheru Lal is on better footing. 12. This Court feels that simply mentioning in the charge sheet that offence under Section 29 of the NDPS Act is made out against the petitioner is not sufficient enough to allow his incarceration until and unless any material is attached with the charge-sheet showing involvement/participation of the petitioner. For ready reference Section 29 of the NDPS Act is being reproduced as under:- 29. Punishment for abetment and criminal conspiracy. (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which- (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India. A plain reading of the provision above makes it clear that if a person abetes the other to commit the offence under the NDPS Act, or a person who hatches a conspiracy with other persons to commit an offence punishable under the NDPS Act, can be charged for the offence under Section 29 of the NDPS Act and it does not matter whether the offence was committed or not in consequence of such abetement or in pursuance of the criminal conspiracy hatched by them. 13. 13. Abetement is defined under Section 107 of the IPC for the ready reference, the same is being reproduced hereunder:- Abetment of a thing. A person abets the doing of a thing, who— First.—Instigates any person to do that thing; or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing. From the above, it is revealing that a person abetes the fact of doing of a thing if he instigate someone to do it or a person abates the doing of a thing, if he conspire with others to do it. If an act or illegal omission occurs in furtherance of that conspiracy then it can be said that an offence of abetement was committed. The other aspect of the provision is that if a person, while abeting the other intentionally aids or assists in doing the thing by any of his act or illegal omission, he is an accused of abetement. Criminal Conspiracy is explained under Section 120-B of the IPC, which is as under:- 120B. Punishment of criminal conspiracy. -- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] To invoke the provision of Criminal conspiracy there has to be an agreement of mind between two or more people to commit an illegal act or to commit an act though not illegal but done by illegal means and the parties have a common intention to commit the act. 14. 14. What is emanating from the provision of abetement or conspiracy that there has to be an act of abetement on behalf of the accused or he must be in agreement with the other persons to do an illegal act. After minutely going through the entire charge-sheet, not an iota of evidence or tissue of the material is there to show or suggest that either there had been a meeting between the petitioner and the principal accused or they were in any manner connected with each other or even to say that anything was done by the petitioner which somehow added/assisted/facilitated/or in any manner cooperated with the co-accused. 15. True, it is that the appreciation rather meticulous appreciation of evidence is not to be done at the inception of the trial but at the same time, it cannot be forgotten that here is an issue of releasing a person on bail who has been detained from more than a year for accusation of committing an offence in a particular provision, at least, there must be something to either corroborate/bolster, to support or verify the saying of the police officer that the petitioner either abeted or was in conspiracy with the principal accused. Had it been the case that soon after or at the time of recovery of the contraband; the principal accused made a disclosure regarding involvement/participation of the accused, if the same was disclosed by him, then the fact situation may be different. What would be the basis for the trial of this accused? Whether only the assertion of the police officer that co-accused is guilty of the charge without single piece of proof; Whether the same as mentioned above, would be sufficient enough to keep a person detained for an indefinite period; Whether in the circumstances mentioned above, the embargo contained under Section 37 of the NDPS Act would come in the way of granting bail; Whether at this stage of judicial proceeding it would be appropriate to declare that he is not guilty of the offence. No, never. It is neither expected nor desirable from a High Court, since doing so, would mean culmination of the trial at its infancy. 16. No, never. It is neither expected nor desirable from a High Court, since doing so, would mean culmination of the trial at its infancy. 16. Considering the totality of facts and circumstances of the case and looking to the high probability that the trial may take long time to conclude, it is deemed suitable to grant the benefit of bail to the petitioners. Needless to say, none of the observations made herein under shall affect the rights of either of the parties during trial and this Court refrains from commenting on the niceties of the matter. 17. Accordingly, both the bail applications (No.167/2025 & 14342/2024) filed. under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners namely Bheru Lal S/o Nandram Jat and Ramniwas S/o Gewarram Vishnoi shall be enlarged on bail provided each of them 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 their appearance before the court concerned on all the dates of hearing as and when called upon to do so.