HIGH COURT OF UTTARAKHAND AT NAINITAL ORIGINAL JURISDICTION Dated Nainital the 16th December, 2010 1st Bail Application No. 1019 of 2010 Order on the bail application of the accused. Radhey Singh S/o Laxman Singh ……. Applicant Versus State of Uttarakhand …….. Opposite Party In Case Crime No. 356 of 2010 U/S 8/20 of the N.D.P.S. Act Police Station Haldwani District Nainital Hon’ble Tarun Agarwala, J. Heard Mrs. Indu Sharma, the learned counsel for the applicant and Mr. Amit Bhatt, Addl. G.A. for the State. As per the F.I.R. lodged against the applicant, it transpires that the Sub Inspector alongwith the other constables while traveling in their jeep stopped near Gola Byepass upon seeing the applicant coming from the opposite direction carrying a plastic bag in his hand. On inquiry and search, it was found that the applicant was carrying contraband goods, namely, charas weighing approximately 4 kgs. The F.I.R. alleges that the applicant was informed of his rights as provided u/S 50 of the N.D.P.S. Act for being searched in the presence of the gazetted officer which he declined. The contraband goods was sealed and it is alleged that a recovery memo was prepared. The applicant being a poor villager and not involved in the incident, alleges that he has been falsely implicated in the case. The applicant filed a bail application before the Court below which was rejected by an order dated 30th September, 2010. The bail application has now been presented before this Court. A counter affidavit and supplementary affidavit has been filed by the State which has been taken on record. The learned counsel for the applicant states that the mandatory provisions of Section 52-A of the N.D.P.S. Act has not been complied with and non-compliance of the mandatory provision is fatal to the investigation and, consequently, on this short ground the applicant is entitled to be enlarged on bail. U/S 52-A of the N.D.P.S. Act, the article seized at the spot is required to be weighed which is a mandatory requirement of law. In the event, it is not possible to get the contraband weighed at the spot, the seizing party is required to get the same weighed at the nearest police station in the shortest possible time. The provision further provides that it is mandatory for the seizing party to get a sample of the contraband seized to be sent to a laboratory for testing. The sample which is to be sent for the testing is also required to be weighed on a weighing scale and the concerned police officer is required to make an application to a Magistrate for granting him permission to draw the sample. The Magistrate is also enjoined a duty to ensure that the sample is drawn in his presence. This stringent procedure is to ensure that the weighing of the sample as well as of the drawl of the sample conforms to all the legal requirements and further to ensure that no foul play is done by the police or by any other source and that it does not prejudice the accused. Section 53 of the Act also mandates the seizing party to prepare an inventory of the seized contraband. The goods so seized is required to be certified before the Magistrate u/S 52-B of the N.D.P.S. Act upon an application being made by the seizing party. The provisions of Section 52-A and 53 of the Act has been held to be mandatory provisions as held by this Court in Baldev Singh Vs. State of Uttarakhand, U.D. 2008 (2) 456. In the light of the aforesaid, the Court finds from a reading of the F.I.R. that the contraband goods seized by the police party was not weighed either at the spot nor at the police station and only an approximation of the weight has been stated in the F.I.R. The mandatory requirement of weighing the goods has not been complied with by the police. The court further finds that the inventory so prepared was not certified by the Magistrate nor a sample was taken for chemical analysis nor previous permission was taken from the Magistrate concerned. The Court further finds that at the time when the goods were seized, the inventory was not prepared in front of the independent witnesses. It is alleged that the applicant is a poor villager and has no criminal history. The fact that the inventory was prepared in absence of the witnesses and the sample was sent without taking previous permission from the Magistrate are all admitted by the respondents in paragraph 12 and 14 of the counter affidavit. In the light of the aforesaid, the Court is of the opinion that since the mandatory provision of law has not been complied with, the applicant is entitled for bail at this stage. Let the applicant be enlarged on bail in Case Crime No. 356 of 2010, U/S 8/20 of the N.D.P.S. Act, on executing a personal bond and furnishing two sureties each of the like amount to the satisfaction of Magistrate concerned. (Tarun Agarwala, J.) Dated 16.12.2010 Shiv