Allahabad High Court

4. As per the allegations of the FIR, a total of 170 Kg. Poppy Straw is said to have been recovered from 11 bags recovered from the possession of applicant and co-accused person Jakir by the police on 23.5.2025 at about 09:00 p.m.

5. Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. The allegations are per se false and there is no compliance of mandatory provision of Sections 42 & 52A of the N.D.P.S. Act. No sample was drawn from the said bags, as such, it is a clear cut case of false implication. In support of this submission, learned counsel for the applicant has placed much reliance on the judgment of the Supreme Court in Nadeem Ahamed vs. State of West Bengal, 2025 SCC OnLine SC 1779. The relevant paragraphs of the said judgment are as follows: "15. Learned counsel for the accused-appellant has advanced the following arguments to challenge his conviction:— i). That there was a total non-compliance of the mandatory provisions of NDPS Act in conducting the search and seizure. 2 BAIL No. 21525 of 2025 ii). That the search and seizure proceedings are full of contradictions and inherent improbabilities and the same do not inspire confidence. iii). That the prosecution case is vitiated because the seizure officer (PW-2) failed to comply with the mandate of Section 52A of the NDPS Act, inasmuch as neither were samples drawn in presence of a Magistrate, nor was any inventory prepared as per the requirement of law. iv). That the trial Judge committed a grave error in holding that the recovered contraband weighed more than the commercial quantity. In this regard, it has been fervently contended that there is no evidence on record to show that the accused-appellant and the co-accused were known to each other from before, or that either of them had the prior knowledge of the contraband allegedly possessed by the other.

22. Merely because the two accused, walking side-by-side, were apprehended simultaneously, and both were carrying narcotic drug concealed on their body, the said coincidental happening, by itself, would not give rise to an inference that either of them had the knowledge about the contraband being carried by the other. These facts may give rise to a suspicion, but suspicion, however, cannot take place of proof.

28. While the above sequence of events appears to form a continuous chain, the inconsistencies that emerge therein are of such gravity that they cannot be disregarded. These are as follows:— (a) The seizure officer (PW-2) collected only one sample each from the packets of the contraband seized from the individual accused. This is in direct contravention of Clause 2.2 of Standing Order No. 1 of 1989 dated 13th June, 1989, issued by the Anti- Smuggling Unit, Department of Revenue, Ministry of Finance. The said clause stipulates: “2.2 All the packages/containers shall be serially numbered and kept in lots for Sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.” The said standing order came up for consideration before this Court in the case of Noor Aga v. State of Punjab14, wherein it was held that the guidelines mentioned (Emphasis supplied) 3 BAIL No. 21525 of 2025 above should not only be substantively complied with, but in a case involving penal proceedings, the rigours of such guidelines may be insisted upon. The manifest non- compliance of the standing order in the present case is, therefore, of considerable import. (b) According to the testimony of the seizure officer (PW-2), the Gazetted officer (PW-4), the independent witnesses, and the detenues, including the accused-appellant, signed the seizure list and the labels affixed to the seized material, including the loose labels. However, when the sample packets were opened before the trial Court during evidence of the seizure officer (PW-2), the labels contained only the signatures of the witnesses, the seizure officer (PW-2) and the panch witness. The signatures of the accused were conspicuously absent from the packets, as per the observations recorded in the deposition. To substantiate this conclusion, we proceed to extract the relevant excerpts from the seizure officer's (PW-2) evidence:— “Thereafter, I seized the contraband as well as the currency notes and the key under a seizure list in presence of independent witnesses, the Gazetted Officer as well as the member of the raiding team and both the accused persons put their signature in the seizure list. The GO, independent witnesses as well as the other member of the raiding team also put their signatures in the seizure list. … The witness is shown a brown coloured envelope it is sealed and labeled and marked as S 1 he identify the packet and stated that the packet contained 10 gms of heroin from the mother packet. The brown coloured packet is marked as MAT EXT - I. The label on the brown packet is marked as MAT EXT - II and the signature of the witness in the label is marked as MAT EXT - II/1. The brown coloured envelope is opened in presence of Id. Advocate. From inside the packet a transparent polythene packet containing brown coloured powder/granules is brought out. The witness identifies the powder to be the sample which he had taken from the mother packet. The packet is marked as MAT EXT - III. A loose label is also brought out from inside the brown packet. The label is marked as MAT EXT - IV and the signature of the witness in it is marked as MAT EXT - IV/1. The witness is shown a brown coloured envelope it is sealed and labeled and marked as ‘S 2’. He identifies the packet and stated that the (sic) packet contained 10 gms of Heroin from the mother packet. The brown coloured packet is marked as MAT EXT - V. The label on the brown packet is marked as MAT EXT - VI and the signature of the witness in the label is marked as MAT EXT - VI/1. The brown coloured envelope, is opened in presence of Id. Advocate. From inside the packet a transparent polythene packet containing brown coloured powder/granules is brought out. The witness identifies the powder to be the 4 BAIL No. 21525 of 2025 sample which he had taken from the mother packet. The packet is marked as MAT EXT - VII. A loose label is also brought out from inside the brown packet. The label is marked as MAT EXT - VIII and the signature of the witness in it is marked as MAT EXT - VIII/1. After the sample, of 10 gms was taken out the remaining portion of the contraband along with the transparent packet recovered from the possession of Amit Dutta was sealed labeled and pack in a brown coloured packet after repairing the punctured portion. The same was marked as ‘A’. The witness is shown a brown coloured envelope which is sealed and labeled and marked as A” he identifies the packet and stated that it contained remaining portion of the contraband which was recovered from the possession of the accused Amit Dutta (sic). The brown coloured (sic) envelop is marked as MAT EXT - IX. The label in it is marked as MAT EXT - X. The signature of the witness on the label is marked as MAT EXT - X/1. The brown coloured envelope is opened in court in presence of the Ld. Advocate. A loose label and a polythene packet containing brown coloured substance is brought out. The witness identifies the brown substance and stated that it is the remaining portion of the contraband recovered from the possession of Amit Dutta. The packet containing the brown substance is marked as MAT EXT - XI. The loose label is marked as MAT EXT – XII and the signature of the witness in the label is marked as MAT EXT - XII/1. After the sample of 10 gms was taken out the remaining portion of the contraband along with the transparent packet recovered from the possession of Amit Dutta was sealed labeled and pack in a brown coloured packet after. Repairing the punctured portion. The same was marked, as ‘B’. The witness is shown a brown coloured envelope which is (sic) sealed and labeled and marked as ‘B’. He identifies the packet and stated that it contained the remaining portion of the contraband which was recovered from the possession of the accused Nadim Ahmed. The brown coloured envelop is marked as MAT EXT - XIII. The label in it is marked as MAT EXT - XIV. The signature of the witness on the label is marked as MAT EXT - XIV/1. The brown coloured envelope is opened in court in presence of the Ld. (sic) Advocate. A loose label and a polythene packet containing brown coloured substance is brought out. The witness identifies the brown substance and stated that it is the remaining portion of the contraband recovered from (sic) the possession of Amit Dutta. The packet containing the brown substance is marked as MAT EXT - XV. The loose label is marked as MAT EXT – XVI and the signature of the witness in the 5 BAIL No. 21525 of 2025 label is marked as MAT EXT - XVI/1.” A careful perusal of the above excerpt from the evidence of the seizure officer (PW-2) makes it clear that neither the mother packet, nor the sample packets, bore the signatures of the accused-appellant, when the same were opened and exhibited as material objects, during evidence of the aforesaid witness before the trial Court. (c) The seizure officer (PW-2) did not prepare any separate seizure list for the samples drawn from the accused-appellant. Likewise, no “test memo” or “weighment chart” was prepared at the spot. Furthermore, no specimen seal memo was proved by the seizure officer (PW-2), as is evident from his deposition at trial. (d) Although two independent witnesses were associated with the investigation, only one was examined by the prosecution, without any explanation for the omission to examine the other. (e) Most significantly, there has been a complete failure by the prosecution to comply with the important procedural requirement, as provided under sub-section (2) of Section 52A of the NDPS Act.15 A perusal of the record makes it clear that there was no effort whatsoever, either by the seizure officer (PW-2), or the officer-in-charge, to undertake the procedure of sampling and inventory in presence of a Magistrate, in light of the aforesaid provision. The trial Court also noted that the seizure officer (PW-2) has even failed to state as to whether any inventory list had been prepared at the time of the raid."

6. There is no criminal history of the applicant. The applicant is languishing in jail since 24.5.2025. The applicant is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail.

7. Learned A.G.A. has vehemently opposed the bail application.

8. The Supreme Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

9. Considering the facts of the case and keeping in mind, the ratio of the Supreme Court's judgment in the case of Union of India vs. Shiv Shankar Keshari (supra) larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused- applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the 6 BAIL No. 21525 of 2025 public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.

10. Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, without commenting on the merits of the case, prima facie, I find it a fit case for bail.

11. Let the applicant- Munazir, who is involved in aforementioned case be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) The applicant shall not tamper with evidence during trial. (ii) The applicant shall not pressurize/intimidate the prosecution witnesses. (iii) The applicant shall appear before the trial court on the date fixed.

12. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

13. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. September 25, 2025 Vikas Verma (Krishan Pahal,J.)

4. As per the allegations of the FIR, a total of 170 Kg. Poppy Straw is said to have been recovered from 11 bags recovered from the possession of applicant and co-accused person Jakir by the police on 23.5.2025 at about 09:00 p.m.

5. Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. The allegations are per se false and there is no compliance of mandatory provision of Sections 42 & 52A of the N.D.P.S. Act. No sample was drawn from the said bags, as such, it is a clear cut case of false implication. In support of this submission, learned counsel for the applicant has placed much reliance on the judgment of the Supreme Court in Nadeem Ahamed vs. State of West Bengal, 2025 SCC OnLine SC 1779. The relevant paragraphs of the said judgment are as follows: "15. Learned counsel for the accused-appellant has advanced the following arguments to challenge his conviction:— i). That there was a total non-compliance of the mandatory provisions of NDPS Act in conducting the search and seizure. 2 BAIL No. 21525 of 2025 ii). That the search and seizure proceedings are full of contradictions and inherent improbabilities and the same do not inspire confidence. iii). That the prosecution case is vitiated because the seizure officer (PW-2) failed to comply with the mandate of Section 52A of the NDPS Act, inasmuch as neither were samples drawn in presence of a Magistrate, nor was any inventory prepared as per the requirement of law. iv). That the trial Judge committed a grave error in holding that the recovered contraband weighed more than the commercial quantity. In this regard, it has been fervently contended that there is no evidence on record to show that the accused-appellant and the co-accused were known to each other from before, or that either of them had the prior knowledge of the contraband allegedly possessed by the other.

22. Merely because the two accused, walking side-by-side, were apprehended simultaneously, and both were carrying narcotic drug concealed on their body, the said coincidental happening, by itself, would not give rise to an inference that either of them had the knowledge about the contraband being carried by the other. These facts may give rise to a suspicion, but suspicion, however, cannot take place of proof.

28. While the above sequence of events appears to form a continuous chain, the inconsistencies that emerge therein are of such gravity that they cannot be disregarded. These are as follows:— (a) The seizure officer (PW-2) collected only one sample each from the packets of the contraband seized from the individual accused. This is in direct contravention of Clause 2.2 of Standing Order No. 1 of 1989 dated 13th June, 1989, issued by the Anti- Smuggling Unit, Department of Revenue, Ministry of Finance. The said clause stipulates: “2.2 All the packages/containers shall be serially numbered and kept in lots for Sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.” The said standing order came up for consideration before this Court in the case of Noor Aga v. State of Punjab14, wherein it was held that the guidelines mentioned (Emphasis supplied) 3 BAIL No. 21525 of 2025 above should not only be substantively complied with, but in a case involving penal proceedings, the rigours of such guidelines may be insisted upon. The manifest non- compliance of the standing order in the present case is, therefore, of considerable import. (b) According to the testimony of the seizure officer (PW-2), the Gazetted officer (PW-4), the independent witnesses, and the detenues, including the accused-appellant, signed the seizure list and the labels affixed to the seized material, including the loose labels. However, when the sample packets were opened before the trial Court during evidence of the seizure officer (PW-2), the labels contained only the signatures of the witnesses, the seizure officer (PW-2) and the panch witness. The signatures of the accused were conspicuously absent from the packets, as per the observations recorded in the deposition. To substantiate this conclusion, we proceed to extract the relevant excerpts from the seizure officer's (PW-2) evidence:— “Thereafter, I seized the contraband as well as the currency notes and the key under a seizure list in presence of independent witnesses, the Gazetted Officer as well as the member of the raiding team and both the accused persons put their signature in the seizure list. The GO, independent witnesses as well as the other member of the raiding team also put their signatures in the seizure list. … The witness is shown a brown coloured envelope it is sealed and labeled and marked as S 1 he identify the packet and stated that the packet contained 10 gms of heroin from the mother packet. The brown coloured packet is marked as MAT EXT - I. The label on the brown packet is marked as MAT EXT - II and the signature of the witness in the label is marked as MAT EXT - II/1. The brown coloured envelope is opened in presence of Id. Advocate. From inside the packet a transparent polythene packet containing brown coloured powder/granules is brought out. The witness identifies the powder to be the sample which he had taken from the mother packet. The packet is marked as MAT EXT - III. A loose label is also brought out from inside the brown packet. The label is marked as MAT EXT - IV and the signature of the witness in it is marked as MAT EXT - IV/1. The witness is shown a brown coloured envelope it is sealed and labeled and marked as ‘S 2’. He identifies the packet and stated that the (sic) packet contained 10 gms of Heroin from the mother packet. The brown coloured packet is marked as MAT EXT - V. The label on the brown packet is marked as MAT EXT - VI and the signature of the witness in the label is marked as MAT EXT - VI/1. The brown coloured envelope, is opened in presence of Id. Advocate. From inside the packet a transparent polythene packet containing brown coloured powder/granules is brought out. The witness identifies the powder to be the 4 BAIL No. 21525 of 2025 sample which he had taken from the mother packet. The packet is marked as MAT EXT - VII. A loose label is also brought out from inside the brown packet. The label is marked as MAT EXT - VIII and the signature of the witness in it is marked as MAT EXT - VIII/1. After the sample, of 10 gms was taken out the remaining portion of the contraband along with the transparent packet recovered from the possession of Amit Dutta was sealed labeled and pack in a brown coloured packet after repairing the punctured portion. The same was marked as ‘A’. The witness is shown a brown coloured envelope which is sealed and labeled and marked as A” he identifies the packet and stated that it contained remaining portion of the contraband which was recovered from the possession of the accused Amit Dutta (sic). The brown coloured (sic) envelop is marked as MAT EXT - IX. The label in it is marked as MAT EXT - X. The signature of the witness on the label is marked as MAT EXT - X/1. The brown coloured envelope is opened in court in presence of the Ld. Advocate. A loose label and a polythene packet containing brown coloured substance is brought out. The witness identifies the brown substance and stated that it is the remaining portion of the contraband recovered from the possession of Amit Dutta. The packet containing the brown substance is marked as MAT EXT - XI. The loose label is marked as MAT EXT – XII and the signature of the witness in the label is marked as MAT EXT - XII/1. After the sample of 10 gms was taken out the remaining portion of the contraband along with the transparent packet recovered from the possession of Amit Dutta was sealed labeled and pack in a brown coloured packet after. Repairing the punctured portion. The same was marked, as ‘B’. The witness is shown a brown coloured envelope which is (sic) sealed and labeled and marked as ‘B’. He identifies the packet and stated that it contained the remaining portion of the contraband which was recovered from the possession of the accused Nadim Ahmed. The brown coloured envelop is marked as MAT EXT - XIII. The label in it is marked as MAT EXT - XIV. The signature of the witness on the label is marked as MAT EXT - XIV/1. The brown coloured envelope is opened in court in presence of the Ld. (sic) Advocate. A loose label and a polythene packet containing brown coloured substance is brought out. The witness identifies the brown substance and stated that it is the remaining portion of the contraband recovered from (sic) the possession of Amit Dutta. The packet containing the brown substance is marked as MAT EXT - XV. The loose label is marked as MAT EXT – XVI and the signature of the witness in the 5 BAIL No. 21525 of 2025 label is marked as MAT EXT - XVI/1.” A careful perusal of the above excerpt from the evidence of the seizure officer (PW-2) makes it clear that neither the mother packet, nor the sample packets, bore the signatures of the accused-appellant, when the same were opened and exhibited as material objects, during evidence of the aforesaid witness before the trial Court. (c) The seizure officer (PW-2) did not prepare any separate seizure list for the samples drawn from the accused-appellant. Likewise, no “test memo” or “weighment chart” was prepared at the spot. Furthermore, no specimen seal memo was proved by the seizure officer (PW-2), as is evident from his deposition at trial. (d) Although two independent witnesses were associated with the investigation, only one was examined by the prosecution, without any explanation for the omission to examine the other. (e) Most significantly, there has been a complete failure by the prosecution to comply with the important procedural requirement, as provided under sub-section (2) of Section 52A of the NDPS Act.15 A perusal of the record makes it clear that there was no effort whatsoever, either by the seizure officer (PW-2), or the officer-in-charge, to undertake the procedure of sampling and inventory in presence of a Magistrate, in light of the aforesaid provision. The trial Court also noted that the seizure officer (PW-2) has even failed to state as to whether any inventory list had been prepared at the time of the raid."

6. There is no criminal history of the applicant. The applicant is languishing in jail since 24.5.2025. The applicant is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail.

7. Learned A.G.A. has vehemently opposed the bail application.

8. The Supreme Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

9. Considering the facts of the case and keeping in mind, the ratio of the Supreme Court's judgment in the case of Union of India vs. Shiv Shankar Keshari (supra) larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused- applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the 6 BAIL No. 21525 of 2025 public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.

10. Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, without commenting on the merits of the case, prima facie, I find it a fit case for bail.

11. Let the applicant- Munazir, who is involved in aforementioned case be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) The applicant shall not tamper with evidence during trial. (ii) The applicant shall not pressurize/intimidate the prosecution witnesses. (iii) The applicant shall appear before the trial court on the date fixed.

12. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

13. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. September 25, 2025 Vikas Verma (Krishan Pahal,J.)