1 2025:CGHC:12727 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MCRC No. 2121 of 2025 1 - Raman Kumar Yadav S/o Umesh Yadav Aged About 24 Years Resident Of Village Badaki Sandiya, Police Station Mofasil, District Ara (Bihar) 2 - Barjesh Yadav S/o Shivkumar Yadav Aged About 22 Years Resident Of Village Badaki Sandiya, Police Station Mofasil, District Ara (Bihar) ... Petitioner(s) versus State Of Chhattisgarh Through- Station House Office, Police Station Singhoda, District Mahasamund (C.G.) ... Respondent(s) For Petitioner(s) : Ms. Prachi Singh, Advocate. For Respondent(s)/State : Mr. Dilman Rati Minj, GA. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 18.03.2025 1. This application under Section 483 of the BNSS, 2023 has been filed by the accused/applicant who has been arrested in connection with Crime No.40/2023 registered at Police Station Singhoda, Mahasamund (CG) for the offence under Section 20 (B) of the NDPS Act. 2. Prosecution case, in brief, is that on 05.05.2023 the Police authorities while checking the vehicles on road found one white colour Xylo Car without number plate coming from Odisha and upon inspecting inside Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.03.19 12:31:16 +0530 2 the car they have found and seized 150 KG Ganja from the illicit possession of the accused applicants. 3. Learned counsel for the applicant submits that the accused/applicant is innocent and falsely implicated in the crime in question. She further submits that the witnesses who have been examined have not supported the case of the prosecution. The applicant is behind the bar since 05.05.2023 and conclusion of the trial is likely to considerable time. She also submits that the sample proceedings were not conducted in proper procedure in accordance with Section 52-A of the NDPS Act and Standing Order No.1/188 issued by the Narcotics Control Bureau, New Delhi. Therefore, the accused/applicant is entitled for grant of regular bail. 4. Per contra, learned State counsel opposes the bail application and submits that one of the seizure namely Krishna Kumar is yet to be examined. He also submits that non compliance of Section 52 A of the NDPS Act cannot entitle the accused for bail. He submits that said principle has been laid down in the matter of Bharat Ambale Vs. State of CG [2025 SCC OnLine SC 110] wherein reliance has been placed in the matter of Narcotics Control Bureau Vs. Kashif [2024 SCC OnLine SC 3848]. He refers to Para 21 (ii) of the said judgment which reads thus:- "21...(ii)..........Mere non-compliance of the procedure envisaged under Section 52A of the NDPS Act will not entitle the accused to acquittal or bail, if there is sufficient material to establish the search and seizure of the contraband in due compliance of the mandatory provisions of the Act. The relevant observations read as under: - 3 “23. As demonstrated above, sub-section (2) of Section 52A specifies the procedure as contemplated in sub- section (1) thereof, for the disposal of the seized contraband or controlled narcotic drugs and psychotropic substances. Any deviation or delay in making the application under subsection (2) by the concerned officer to the Magistrate or the delay on the part of the Magistrate in deciding such application could at the most be termed as an irregularity and not an illegality which would nullify or vitiate the entire case of the prosecution. The jurisprudence as developed by the courts so far, makes clear distinction between an “irregular proceeding” and an “illegal proceeding.” While an irregularity can be remedied, an illegality cannot be. An irregularity may be overlooked or corrected without affecting the outcome, whereas an illegality may lead to nullification of the proceedings. Any breach of procedure of rule or regulation which may indicate a lapse in procedure, may be considered as an irregularity, and would not affect the outcome of legal proceedings but it can not be termed as an illegality leading to the nullification of the proceedings." 5. Learned State counsel also submits that lacunae, if any, in investigation shall be considered during the trial. He also submits that even if the witnesses have retracted during the examination the applicant cannot avail benefit of bail looking to the quantity of contraband and the manner in which it was seized. He also places reliance in the matter of Rizwan Khan Vs. State of Chhattisgarh, (2020) 9 SCC 627 and submits that the present is not a fit case for grant of bail. 6. In the matter of Rizwan Khan Vs. State of Chhattisgarh1, a principle has been reiterated that the independent witnesses have turned hostile, when there is reliable official witness is no ground for acquittal under the NDPS Act. It was materially observed at para-12 which reads thus:- “12. It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non- 1 (2020) 9 SCC 627 4 corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar (2018) 13 SCC 808 , (2019) 1 SCC (Cri) 420].” 7. In light of the aforesaid principles and considering the mode and manner in which illegal contraband has been seized and also considering the quantity of recovered Ganja, this Court is of the view that Section 37 of the NDPS Act attracts in the matter and further, if there is any lapse in the procedure, the same may be considered as an irregularity, which would not affect the outcome of legal proceedings. Hence, I am not inclined to grant bail to the applicant. 8. Accordingly, the application is rejected. 9. It is made clear that the observations made here-in-above shall not be construed as an opinion on the merits of the case and the trial Court shall decide the case, on its own merits, in accordance with law and in expeditious manner. Sd/- (Deepak Kumar Tiwari) Judge Ajay