No Section 52A Proceedings Before Magistrate and Five Years' Custody: Rajasthan High Court Grants NDPS Bail

The petitioner was arrested in a case registered at Police Station NCB Jodhpur Unit and charged under Sections 8/15, 8/18, 8/25 and 8/29 of the NDPS Act (para 1). His first bail application was disposed of without considering the merits because it was not pressed while the statements of the seizure officer and the investigating officer were pending; once they were recorded, he filed this second application under Section 439 CrPC (paras 1-2). The prosecution opposed bail, submitting that the 215.100 kg of poppy straw and 28.920 kg of opium recovered from him was a commercial quantity attracting the Section 37 bar, that the investigation had collected overwhelming evidence, and that he was a drug peddler (para 4).

The Court found the seizure officer (PW-1) did not get the Section 52A proceedings conducted before a Magistrate, so the mandatory provision was not followed (para 6). It relied on Mangi Lal v. State of Madhya Pradesh (Section 52A is a mandatory rule of evidence requiring a Magistrate’s physical presence) and Mohammed Khalid v. State of Telangana (without such proceedings the FSL report cannot be read in evidence) (paras 6-7). The petitioner had been in custody for almost five years; only six witnesses had been examined, and the rest were not produced despite a specific order (para 8). Citing Rabi Prakash, K.A. Najeeb and Mohd Muslim, it treated prolonged incarceration and delay in trial as grounds for bail despite Section 37 (paras 9-11). The seizure memo and samples were not prepared at the spot; the paperwork was done at a police station not shown to be near the place of recovery, so the seizure was prima facie vitiated (paras 12-13). Without going into the merits, it held the rigour of Section 37 satisfied: the petitioner had substantial grounds to question the prosecution case, no other NDPS case was shown against him, and the trial would take considerable time (para 14).