Neutral Citation No. - 2025:AHC:21103 Court No. - 79 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3560 of 2025 Applicant :- Umesh Ram Opposite Party :- State of U.P. Counsel for Applicant :- Sanjay Ojha Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. The instant bail application, under Section 439 Cr.P.C., has been filed with a prayer to enlarge the applicant on bail in Case Crime No. 339 of 2023, under Section 8/20/29/37 N.D.P.S. Act, Police Station- Sarsawa, District Saharanpur, during the pendency of trial. 3. Learned counsel for the applicant submitted that applicant has been falsely implicated in the instant case. Nothing has been recovered from the applicant and also there is no independent witness to the alleged recovery. The mandatory provision of Sections 50 and 51 of NDPS Act have not been complied with. Further procedure of sampling prescribed in Rule 9 of Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 have also been violated. Learned counsel for the applicant further submitted that the strict procedure with regard to sampling of substance must be in presence of Magistrate but at the time of filing counter affidavit the specific averment made by the deponent that the sampling has been made before learned Special Judge prescribed by learned counsel for the applicant that as per the notification of Special Judge confined to the Court of learned Sessions Judge not the Magistrate and as such the compliance of Rule 9 of Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 has not been followed. Co-accused namely, Saukat Ali has already been granted bail by co-ordinate Bench of this Court vide order dated 24.10.2024 passed in Criminal Misc. Bail Application No. 8155 of 2024, hence the applicant is also liable to be enlarged on bail. It is further submitted by learned counsel for the applicant that applicant is having no criminal history credited in his favour and languishing in jail since 03.12.2023 and in view of contents made above, the applicant may be enlarged on bail. 4. Per contra, learned A.G.A. vehemently opposed the prayer as made in the bail and rebutted the stand taken by learned counsel for the applicant but at the same time did not disputed the fact regarding no criminal history credited in favour of the applicant. Over the instruction received, no explanation has been made with regard to receiving samples in presence of Special Judge which is strictly contrary to the provisions of Rule 9 of Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022. 5. After considering the arguments raised by learned counsel for the applicant that the word Magistrate confined to the Judicial Officer at concerned District as under the Magistracy wherein the hierarchy has been segregated as Session Judge and the Magistracy. The word and designation of Special Judge is confined to only Session Judges in shape of Additional Session Judge/Session Judge and as such for strict compliance of Rule 9 of Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 the sample has to be made in presence of Magistrate not before the Special Judge. 6. Keeping in view the submission of learned counsel for the parties, considering that the co-accused has already been granted bail by coordinate Bench of this Court, period of incarceration and considering the period of detention of the applicant and considering all other attending facts and circumstances of the case, without expressing any opinion on the merits of the case, at this stage, prima facie, a case for bail has been made out. 7. The prayer for bail is granted. The application is allowed. 8. Let the applicant-Umesh Ram, involved in the aforesaid case crime 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 the conditions that he: i. The applicant will not tamper with the evidence during the trial. ii. The applicant will not pressurize/intimidate the prosecution witness. iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/ or the applicant shall make himself available for interrogation by a police officer as and when required. iv. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. v. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. vi. The applicant shall not leave India without the previous permission of the Court. vii. In the event, the applicant changes his residential address, the applicant shall inform the court concerned about new residential address in writing. 9. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 13.2.2025 #Vik/- Digitally signed by :- VIKRAM GUPTA High Court of Judicature at Allahabad