2025:UHC:5801 SL. No. Date Office Notes, reports, orders or proceedings or directions and Registrar’s order with Signatures COURT’S OR JUDGE’S ORDERS BA1 No.144 of 2024 Hon’ble Alok Mahra, J. Mr. Vikas Singh Yadav, Advocate for the applicant. Mr. Deepak Bisht, D.A.G. for the State of Uttarakhand. 2. This first bail application has been moved by the applicant, seeking regular bail in F.I.R. No.538 of 2023, under Section 8/20/60 of N.D.P.S. Act, registered at Police Station Ramnagar, District Nainital. 3. The applicant was apprehended on 28.12.2023 at about 18:25 at Ramnagar- Kashipur Highway. An inventory was prepared on the spot, wherein the applicant was apprehended with 62 Kgs. of Ganja. The seized contraband was produced before the Magistrate on the next day i.e. on 29.12.2023, but due to paucity of time, on that day, samples could not be taken from the seized contraband. Thereafter, the seized contraband was again produced before the Magistrate for taking samples on 02.01.2024, but on that day, samples could not be taken from the alleged contraband and the alleged contraband was sent back to Malkhana for safe custody. Thereafter, on 05.02.2024, the applicant was not produced before the Magistrate, therefore, samples could not be taken on that day also. Ultimately, the seized contraband were produced on 19.02.2024 before the Judicial Magistrate, Ramnagar and, on that day, for the first time, the seal of the bag containing the alleged contraband was opened and the samples were sent to Forensic Science 2025:UHC:5801 Laboratory. 4. It is contended by learned counsel for the applicant that applicant has falsely been implicated in the instant crime, has no criminal history and is languishing in jail since 28.12.2023. Learned counsel for the applicant submits though samples of the alleged contraband for the first time was taken on 19.02.2024, but inventory was certified by the Magistrate on 29.12.2023, which is in violation of Rule 8 of Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022. Rule 8 of the aforesaid Rules reads as under: “8. Application to Magistrate.- After the seized material under the Act is forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53 of the Act or if it is seized by such an officer himself, he shall prepare an inventory of such material in Form-4 and apply to the Magistrate, at the earliest, under sub-section (2) of section 52A of the Act in Form-5.” 5. Learned counsel for the applicant has drawn the attention of this Court to Section 52-A(2)(a) of the NDPS Act, 1985. Section 52-A of the NDPS Act is extracted as hereunder:- “52A. Disposal of seized narcotic drugs and psychotropic substances.—(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. 2025:UHC:5801 (2) Where any 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of— (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of 5 [such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub- section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of 1 [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.” 6. Learned counsel for the applicant has further submitted that provisions of Section 52A(2)(a) were not complied with inasmuch as inventory prepared by the officer in-charge was certified by the Magistrate on 29.12.2023. But, while 2025:UHC:5801 certifying the inventory, the correctness of the inventory so prepared were not gone into by the Magistrate. To substantiate his arguments, learned counsel for the applicant has submitted that it is admitted case of the prosecution that the seal of the alleged contraband was broken before the Magistrate for the first time only on 19.02.2024 when samples were drawn and sent to the Forensic Science Laboratory by the signatures of the Magistrate. Therefore, he has submitted that without physically examining the contraband and weighing the confiscated contraband, the correctness about the inventory prepared by the officer in-charge could not be certified. He has further submitted that since the correctness of the inventory so certified by the Magistrate is not as per the procedure and since sub-section 4 of Section 52-A provides that the inventory so certified would be treated as primary evidence in respect of such evidence, therefore, by not following the procedure as prescribed under Section 52-A, the whole trial would get vitiated. He also submits that, till date, only one witness have been examined by the prosecution. He also submits that in case, the applicant is granted bail, he will not misuse the same and will furnish the bail surety as per the satisfaction of this Court. 7. Learned State Counsel vehemently opposed the bail application. Learned State Counsel admitted the fact that samples of the alleged contraband were taken for the first time on 19.02.2024 and inventory was certified on 29.12.2023. He submits that mere irregularity in the procedure will not vitiate the trial and applicant will not be entitled to get benefit of the minor irregularities and, in fact, it is case of chance recovery. 8. Considering the submission of 2025:UHC:5801 learned counsel for the parties and without expressing any opinion as to the final merits of the case, this Court is of the view that applicants deserve bail at this stage. 9. The bail application is allowed. 10. Let the applicant, namely, Gurvinder Singh be released on bail, on executing personal bond and furnishing two reliable sureties, each of like amount, to the satisfaction of Court concerned, subject the following conditions: i) The applicant shall attend the trial Court regularly, and, he will not seek any unnecessary adjournment. ii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case. iii) The applicant shall not leave India without any prior permission of the trial Court. 11. It is clarified that if the applicant misuses or violates any of the conditions, imposed upon him, the prosecution will be free to move the court for cancellation of bail. (Alok Mahra, J.) 09.07.2025 Ujjwal