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TMI Blog2023 (8) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... volved herein. In any event, reliance placed by the learned counsel for the applicant on the aforesaid cases is misplaced, as the period undergone in the present case is far less than what was involved therein and bail granted to the accused therein was under the facts of those cases. Even otherwise, it is trite that parity is not the sole ground for granting bail to an accused like the applicant herein, more so, whence there is a huge difference between the quantum of contraband recovered/ involved in the present case - the Court must not forget that the burden always remains on the prosecution to prove the guilt of the accused beyond reasonable doubt and it cannot be ignored that the applicant has yet not come up with any plausible explanation, during trial, as to the reason for his possession of such large quantities of contraband. Admittedly, the charges are yet to be framed and no witnesses have been examined so far before the learned Trial Court. Releasing the applicant on bail at this stage may amount to the applicant influencing the witnesses or tampering with evidence. Seeing the gravity of the offence involved and the factual matrix of the case that colossally large quant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all which was the passage to another shop, which was locked. Upon breaking the said lock, in addition to the above, 17 types of NDPS medicines were also found, alleged to be stored by the applicant. 6. Later, the applicant voluntarily disclosed that few medicines containing narcotics substance, were kept in a room on the roof. The search whereof further unearthed 9 types of NDPS medicines. 7. During the raid, many people gathered near the shop which created commotion and further search could not be made possible in that situation. Resultantly, the raiding team loaded the medicines on a truck which proceeded for CBN Office at 09:30 PM. Upon reaching the CBN Office, the medicines were unloaded and segregated batch wise and sampling was done. From the 45 batches of medicines, one sample along with their duplicate was taken out from every batch, marked, packed and sealed with the seal of CBN. 8. Thereupon, the applicant was arrested on 16.10.2019 and after completion of investigation, complaint was filed before the competent Court. 9. Learned counsel appearing for the applicant submits that the applicant has been falsely implicated in the present case. He submits that as no samples wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) which reads as under: 6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been prejudged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections. 17. The learned Senior Standing Counsel has placed reliance on para 39 of Masibur Khan (supra), which reads as under: 39. In view of the aforesaid, this Court is of the opinion that the procedure adopted with respect to contraband in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof is as under: 15. (iii)Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount 19. As per the Nominal Roll, the applicant has clean antecedents and satisfactory jail conduct. 20. A coordinate Bench of this Court in Naveed (supra) held that any procedural defects or violation of any Circular would be a matter of trial, thereby rendering reliance by the learned counsel for the applicant on Amani Fidel (supra), passed at the appellate stage, as misplaced. 21. This Court finds support in M. Prabhulal vs. Assistant Director (2003) 8 SCC 449, wherein the Hon ble Supreme Court declined to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. Also, a coordinate Bench of this Court in order dated 06.07.2021 in BAIL APPLN. 1416/2021 titled Arvind Yadav vs. Govt of NCT Delhi, held as under: 11. It is in the light of these facts referring to Section 52A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e malkhana for being sent to FSL to seek a report as to the nature of the contraband for the purposes of filing the charge-sheet. The decision in Mohan Lal (supra) does not canvas that the procedure followed by the investigating agencies like the Directorate of Revenue Intelligence which takes samples on the spot resulted in an illegality so as to vitiate the trial. Conscious of the complicity of the matter, Supreme Court in para 18 of the report in Mohan Lal (supra) noted that there is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Supreme Court thus directed the Central Government to re-examine the matter and take suitable steps in the above direction. Needless to note that till date no further amendments to the statutory provision or by rescinding the Standing Order has been brought out. 13. By this petition, petitioner seeks bail on the ground of non- compliance of Section 52A of the NDPS Act, however, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of rules could be a ground for grant of bail, especially in cases involving a commercial quantity, where the twin conditions of Section 37 of the NDPS Act would required to be satisfied , will have to be examined considering the nature of violation of such standing procedure and consequences thereof. 24. Be that as it may, in the opinion of this Court, the applicant also cannot claim parity with the accused persons in Suraj (supra) and Priyaranjan (supra) as the situation(s) involved therein were far from what are involved herein. In any event, reliance placed by the learned counsel for the applicant on the aforesaid cases is misplaced, as the period undergone in the present case is far less than what was involved therein and bail granted to the accused therein was under the facts of those cases. Even otherwise, it is trite that parity is not the sole ground for granting bail to an accused like the applicant herein, more so, whence there is a huge difference between the quantum of contraband recovered/ involved in the present case. 25. Lastly, the Court must not forget that the burden always remains on the prosecution to prove the guilt of the accused beyond reasonable doubt an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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