1 IN THE HIGH COURT AT CALCUTTA [ CIRCUIT BENCH AT PORT BLAIR ] *** CRM (NDPS)/6/2026 In RE: An application for bail under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 in connection with Special NDPS Case No. 05 of 2026, FIR No. 03 of 2026 dated 14.02.2026 under Section 22 (c) of the NDPS Act, 1985 pending before the Special Judge (NDPS), Port Blair, South Andaman And In the matter of David Johnson Vs. The State Mr. D. Ilangao Mr. Vinod Krishnan … for the petitioner Mr. Sumit Kumar Karmakar … for the respondent September 22, 2026 [AKB] Item No. 20 1. Heard the learned advocate for the parties. 2. This application has been filed at the behest of the petitioner/accused under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, praying for his release on bail in connection with NDPS Case No. 5 of 2026, corresponding to FIR No. 03 of 2026 dated 14th February, 2026, registered with the Police Station Anti-Narcotics, under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”). 3. At the very outset, Mr. D. Ilango, learned Advocate appearing for the petitioner submits that the petitioner has been able to satisfy the twin conditions contemplated under Section 37 of the NDPS Act and has, therefore, made out a case 2 for overcoming the statutory embargo contained therein. It is contended that, having regard to the materials presently available on record, there are reasonable grounds for believing that the petitioner may not be guilty of the alleged offence and that he is not likely to commit any offence while on bail. 4. In support of such contention, learned Advocate for the petitioner has drawn the attention of this Court to several alleged discrepancies and irregularities in the investigation, particularly with regard to the manner in which the search, seizure, sampling and transmission of the seized contraband were undertaken. 5. It is submitted that the statutory safeguards engrafted in Sections 42, 50 and 57 of the NDPS Act have not been duly complied with by the investigating agency. According to learned Advocate, the discrepancies relating to the weight of the alleged contraband are of considerable significance. It is the prosecution case that 54.01 grams of methamphetamine were seized from the possession of the petitioner. However, at the stage of subsequent sampling before the learned Magistrate, the total weight of the seized substance was found to be 54.11 grams. Learned Advocate submits that there is no explanation on record as to how the weight of the seized substance could have increased from 54.01 grams at the time of seizure to 54.11 grams at the time of sampling before the learned Magistrate. According to him, such discrepancy cannot be brushed aside as an insignificant variation, particularly in a prosecution under the NDPS Act where the quantity of the alleged contraband has 3 direct bearing upon the nature and gravity of the offence and the statutory consequences flowing therefrom. 6. It is further submitted that the procedure prescribed for handling and transmission of the seized contraband has not been strictly adhered to. According to learned Advocate, after the inventory and sampling proceedings, instead of ensuring transmission of the duly certified samples directly from the Magistrate to the jurisdictional forensic laboratory, the seized articles were first retained in the police ‘malkhana’ and thereafter forwarded to the CFSL. It is argued that such intervening custody, in the absence of a satisfactory explanation and proper documentation demonstrating the integrity of the chain of custody, raises a legitimate question at this stage regarding the sanctity and reliability of the seized material and the sample ultimately subjected to chemical examination. 7. Learned Advocate has also drawn the attention of this Court to Rules 13 and 14 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022. Rule 13 contemplates that samples, after certification by the Magistrate, are to be sent directly to the jurisdictional laboratory for chemical analysis without delay, whereas Rule 14 deals with expeditious testing and submission of the chemical analysis report. It is submitted that the manner in which the alleged contraband was dealt with, sampled, stored and thereafter transmitted to the forensic laboratory does not, at this stage, inspire sufficient confidence and that 4 the unexplained variation in weight further reinforces the petitioner's contention regarding non-compliance with the prescribed safeguards. 8. It is further contended that the alleged secret information/note and the report purportedly prepared under Section 57 of the NDPS Act also require careful scrutiny as to their authenticity, preparation and compliance with the statutory requirements. Learned Advocate submits that the mandatory requirement of Section 42(2) of the NDPS Act has also not been complied with in its true letter and spirit. 9. In support of his submissions, learned Advocate for the petitioner has placed reliance upon the orders passed by the Coordinate Benches of this Court in Alok Kumar Mandal, in connection with CRM (NDPS) 8 of 2025, Shri Sandeep Bera, in connection with CRM (NDPS) 9 of 2025, and Shri Raju Golder, in connection with CRM (NDPS) 5 of 2025. Reliance has also been placed upon the judgment of the Hon’ble Supreme Court in State of Rajasthan v. Parmanand and Another, reported in (2014) 5 SCC 345, particularly with regard to the mandatory nature of the safeguards contemplated under Section 50 of the NDPS Act. The Hon’ble Supreme Court has emphasized that the right under Section 50 is not an empty formality and that the communication of such right must be clear, individual and unambiguous. 10. On the strength of the aforesaid submissions, it is argued that the investigation suffers from material procedural infirmities, namely, the alleged non-compliance with Section 50, 5 the asserted non-compliance with Section 42(2), the doubtful nature and preparation of the secret information and the report under Section 57, the alleged non-compliance with the prescribed procedure governing sampling and dispatch of the seized material, and, above all, the unexplained discrepancy in the recorded weight of the alleged contraband. 11. It is submitted that these circumstances raise arguable questions concerning the legality of the search and seizure as well as the integrity of the chain of custody of the seized substance. Learned Advocate therefore submits that, at this stage, there exist reasonable grounds for believing that the petitioner may not be guilty of the alleged offence and that there is no material before the Court to suggest that, if released on bail, he is likely to commit any offence. It is accordingly prayed that the petitioner be enlarged on bail by holding that the requirements of Section 37 of the NDPS Act stand satisfied. 12. Per contra, Mr. Sumit Kumar Karmakar, learned Advocate appearing for the State opposes the prayer for bail and submits that the alleged defects and discrepancies relied upon by the petitioner are matters which can appropriately be considered during the course of trial after the evidence of the prosecution witnesses is adduced and tested by cross- examination. 13. It is further submitted that the provisions of Section 50 of the NDPS Act have no application in the facts of the present case. Nevertheless, as a matter of abundant precaution, a notice under Section 50 of the NDPS Act was served upon the 6 petitioner. Learned Advocate for the State draws the attention of this Court to the said notice and submits that the petitioner, after understanding its contents, acknowledged receipt thereof and put his signature on the same. 14. It is further submitted that the seizure memo prepared by the investigating agency clearly records recovery of the alleged contraband from the possession of the petitioner. According to learned Advocate for the State, the factum of recovery cannot, at this stage, be completely disregarded merely on the basis of the discrepancies pointed out by the defence. It is argued that there is no apparent illegality or material irregularity in the search and seizure and that the investigating agency substantially followed the procedure prescribed under the NDPS Act. 15. Learned Advocate for the State, therefore, submits that the objections raised by the petitioner are matters for appreciation of evidence at the appropriate stage of trial and do not furnish sufficient grounds for recording satisfaction under Section 37 of the NDPS Act. Accordingly, the State prays for rejection of the bail application. 16. Heard learned Advocates for the parties and perused the materials available in the case diary. 17. At the stage of consideration of a bail application under Section 37 of the NDPS Act, this Court is not required to conduct a meticulous appreciation of the evidence or record a finding of acquittal. Nevertheless, the statutory restriction contained in Section 37 requires the Court to form a reasonable 7 satisfaction, on the basis of the materials presently available, as to whether there are reasonable grounds for believing that the accused is not guilty of the alleged offence and whether he is unlikely to commit any offence while on bail. The expression “reasonable grounds” necessarily requires something more substantial than a mere prima-facie consideration, although it does not contemplate a final adjudication upon the merits of the prosecution case. 18. In the present case, it is the prosecution's own case that 54.01 grams of methamphetamine were seized from the possession of the petitioner. However, it appears from the materials placed before this Court that, at the time of sampling before the learned Magistrate, the total weight of the substance was recorded as 54.11 grams. The difference may appear numerically small, but in the context of an NDPS prosecution, where the identity, quantity and integrity of the seized substance assume fundamental importance, the discrepancy cannot be ignored altogether at the stage of considering whether the statutory safeguards have been duly observed. 19. What assumes greater significance is that no satisfactory explanation has been placed before this Court, at this stage, as to how the weight of the alleged seized substance increased between the time of seizure and the subsequent sampling before the learned Magistrate. The Court is not, at this stage, required to determine the ultimate reason for such variation; nevertheless, the absence of an apparent explanation constitutes a circumstance which can legitimately be taken into 8 consideration while assessing whether the prosecution has demonstrated strict adherence to the safeguards governing the handling of seized contraband. 20. It further appears, prima-facie, from the materials placed before this Court that, after the inventory and sampling proceedings before the learned Magistrate, the seized material/samples were not transmitted directly to the jurisdictional forensic laboratory but were first retained in the police malkhana and thereafter forwarded to the CFSL. Rule 13 of the 2022 Rules specifically provides that samples, after certification by the Magistrate, shall be sent directly to the jurisdictional laboratory for chemical analysis without delay. The prescribed procedure is intended to maintain the integrity of the sample and to minimise the possibility of alteration, substitution, contamination or uncertainty regarding the identity of the material examined by the forensic laboratory. 21. The question at this stage, therefore, is not merely whether the seized material was ultimately sent to the CFSL, but whether the prescribed chain of custody and the safeguards governing its movement were duly maintained. In the facts presently before this Court, the manner in which the material was retained and thereafter transmitted, coupled with the unexplained discrepancy in weight, raises an arguable issue concerning the integrity of the seized substance and the sample subjected to chemical examination. 22. The Court also finds substance, prima-facie, in the submission regarding compliance with Section 42(2) of the 9 NDPS Act. The safeguards contained in Section 42 cannot be treated as empty formalities, particularly in view of the stringent penal consequences under the NDPS Act. Where the prosecution relies upon prior secret information and proceeds upon the basis of such information, the statutory requirement regarding recording and communication of such information assumes significance. At this stage, the materials placed before the Court do not satisfactorily demonstrate strict compliance with the statutory requirement so as to completely dispel the doubt raised on behalf of the petitioner. 23. So far as Section 50 of the NDPS Act is concerned, the State has submitted that the provision was not attracted to the search in question and that the notice was nevertheless served as a matter of abundant precaution. However, where a personal search of an accused is undertaken, the statutory safeguard under Section 50 assumes importance and the communication of the right contemplated therein must be clear and unambiguous. The Supreme Court in case of Parmanand (supra), reiterated that the right under Section 50 is an important statutory safeguard and that the manner of its communication cannot be reduced to a mere formality. 24. In the present case, the notice purportedly issued under Section 50, as placed before this Court, does not appear to contain the name or sufficient particulars of the Gazetted Officer before whom the petitioner was allegedly offered the option of being searched. Prima-facie, therefore, the manner in which the statutory right was communicated gives rise to a 10 substantial question as to whether the petitioner was actually made aware of the specific statutory safeguard available to him. This aspect assumes further significance in view of the fact that the State itself relies upon the said notice as evidence of compliance with Section 50. 25. It is true that the ultimate effect of these alleged discrepancies and irregularities will have to be assessed upon appreciation of evidence at the trial. The Court is conscious that, at the stage of bail, it should neither conduct a mini-trial nor return any final finding concerning the guilt or innocence of the accused. However, while considering the rigours of Section 37, the Court is equally required to examine whether the materials presently available disclose reasonable grounds for the satisfaction contemplated by the statute. 26. On an overall consideration of the materials presently available, this Court finds that the unexplained discrepancy in the weight of the alleged contraband, the manner in which the samples were retained and subsequently transmitted to the forensic laboratory, the prima facie deficiency in compliance with Section 42(2), and the apparent infirmity in the notice purportedly issued under Section 50, taken cumulatively, raise substantial and arguable questions concerning the legality of the search and seizure and the integrity of the chain of custody. 27. These circumstances, at this stage, are sufficient to persuade this Court that the petitioner has made out reasonable grounds for the purposes of the first condition under Section 37 of the NDPS Act. There is also no material placed 11 before this Court from which it can reasonably be concluded, at this stage, that the petitioner, if enlarged on bail, is likely to commit any offence of a similar nature. The second condition contemplated under Section 37 is, therefore, also capable of being satisfied subject to appropriate conditions being imposed to secure the petitioner's presence and to prevent any interference with the administration of justice. 28. Having regard to the totality of the circumstances and without expressing any final opinion on the merits of the prosecution case, this Court is of the considered view that the petitioner has been able to overcome, at this stage, the rigours of Section 37 of the NDPS Act and is entitled to the privilege of bail. 29. Accordingly, the petitioner/accused, namely David Johnson, is directed to be released on bail in connection with NDPS Case No. 5 of 2026, corresponding to FIR No. 03 of 2026 dated 14th February, 2026, on furnishing a bail bond of Rs.20,000/- (Rupees Twenty Thousand) with two sureties of like amount, one of whom shall be a local surety, to the satisfaction of the learned Chief Judicial Magistrate, Port Blair, subject to the following conditions: (i) The petitioner shall attend the concerned Police Station on every alternate day and shall cooperate with the investigation and/or any further proceeding as may be required in accordance with law; (ii) The petitioner shall appear before the learned Trial Court on each and every date fixed for hearing, unless his personal appearance is specifically dispensed with by 12 the learned Trial Court or his absence is occasioned by circumstances beyond his control; (iii) The petitioner shall not leave the Islands without obtaining prior permission from the learned Trial Court; (iv) The petitioner 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 such person from disclosing such facts to the Court or to the investigating agency; and (v) The petitioner shall not tamper with the evidence or otherwise obstruct the due course of the trial. 30. It is made clear that the observations made herein are confined solely to the consideration of the petitioner's prayer for bail and shall not be construed as an expression of any final opinion on the merits of the prosecution case. 31. The Case Diary be returned. 32. Accordingly, CRM (NDPS) 6 of 2026 is allowed. ( Prasenjit Biswas, J. )