ORDER : 1. The jurisdiction of this court has been invoked by way of filing the instant 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 159/2023 2. Concerned Police Station Kotwali, Nagaur 3. District Nagaur 4. Offences alleged in the FIR Section 8/21 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned order 02.07.2024 2. The first application being S.B. Criminal Misc. Bail Application No.13457/2023 came to be dismissed as withdrawn by this Court vide order dated 15.12.2023. Hence, the instant bail application. 3. The case, in brief, revolves around the events of 16.03.2023, when the SHO Kotwali Police Station, Nagaur, along with his team, was on patrolling duty and upon receiving information from an informer, reached the BJP office, Nagaur at 5:55 PM and intercepted a silver Swift Dzire vehicle bearing registration No.MH-02-JP-6645. Upon inquiry, the occupants identified themselves as Premsukh and Shivnarayan alias Raju. A search of Premsukh led to the discovery of a transparent bag containing 59.75 grams of MDMA, while Shivnarayan was found in possession of 32.50 grams of MDMA. The vehicle search revealed additional paraphernalia, including an electronic scale and packaging bags. The accused failed to produce any license or permit for possessing or transporting the contraband. Consequently, an FIR No. 159/2023 was registered under Section 8/21 of the NDPS Act. After the investigation confirmed the commission of the offence, whereafter chargesheet was filed against the accused on 11.09.2023, leading to the registration of the case for trial. The prosecution has recorded the statements of key witnesses, and the matter is presently set for the prosecution's evidence stage. 4. 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. He further submits that the accused was taken into custody on 25.08.2021 and since then he is behind the bars. 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. He further submits that the accused was taken into custody on 25.08.2021 and since then he is behind the bars. Now, more than two and half years have elapsed but the trial is not going to be culminated and still it seems that a further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail. 5. 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. 6. I have heard and considered the submissions made by both the parties and perused the challan papers and the other material available on record. 7. Though the first bail application of the petitioner was rejected by this Court vide order dated 15.12.2023 passed in SBCRLMB No.13457/2023 but the petitioner has filed instant third bail application because out of total 17 witnesses, 3 witnesses have been examined in the trial till date. Co-accused Shivnarayan @ Raju has also been enlarged on bail by the Coordinate Bench of this Court vide order dated 23.08.2023 passed in SBCRLMB No.9973/2023 and the case of the petitioner is not distinguishable from him. Further, a supplementary challan has been filed in the Court concerned against the co-accused Shishpal and Mahipal thus, denovo trial would commence and which would certainly take a long time to reach its legitimate conclusion, the petitioner has again approach this Court for protecting his liberty. 8. Perusal of the record revealing that the petitioner is behind the bar in this case for around two years. At the time of search and seizure 59.75 gms MDMA came to be recovered from the alleged vehicle which was being driven by the petitioner. A further perusal of record revealing that the samples were taken at the spot, they were marked and sent to the FSL for detection of contraband. At the time of search and seizure 59.75 gms MDMA came to be recovered from the alleged vehicle which was being driven by the petitioner. A further perusal of record revealing that the samples were taken at the spot, they were marked and sent to the FSL for detection of contraband. The plea with regard to total non-compliance of Section 52-A of the NDPS Act as well as the NDPS (Seizure, Storage, Sampling & Disposal) Rules 2022 made thereunder has been raised and thus 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. 9. 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. 10. Considering the overall facts and circumstances of the case and the fact that petitioner is behind the bars since bail thus, looking to the fact that there is high probability that the trial may take long time to conclude, it is deemed suitable to grant the benefit of bail to the petitioner in the present matter. 11. 10. Considering the overall facts and circumstances of the case and the fact that petitioner is behind the bars since bail thus, looking to the fact that there is high probability that the trial may take long time to conclude, it is deemed suitable to grant the benefit of bail to the petitioner in the present matter. 11. Accordingly, the instant second 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. 12.. 13. 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. 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. 14. Accordingly, the instant fourth 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.