JUDGEMENT
Sanjeev Kumar, J. -
(1.)This is an application by the petitioner under Sec. 439 of the Code of Criminal Procedure, 1973 seeking his enlargement on bail in case FIR No.10/2020 under Sec. 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ["the Act"] registered with Police Station, Karalgund district Kupwara. Prior to approaching this Court, the petitioner had moved a similar application before the Additional Sessions Judge, Handwara ["the Trial Court"] where the trial against the petitioner is pending adjudication. The Trial Court after appreciating the rival contentions did not find it a fit case to enlarge the petitioner on bail pending trial and as a result, rejected the application for bail filed by the petitioner vide its order dtd. 26/6/2021.
(2.)Being dissatisfied and aggrieved by the order dtd. 26/6/2021 passed by the Trial Court the petitioner has filed the instant petition seeking indulgence of this Court to grant him bail in the aforementioned case.
(3.)The petitioner seeks his enlargement on bail, inter alia, on the following grounds:-
i) The petitioner is innocent and has been falsely implicated in the FIR registered for commission of offence under Sec. 8/20 NDPS Act.
ii) That while making search and recovery the Investigating Officer has not followed the mandatory procedure laid down under Sec. 50 of the Act. Reliance is placed on the Constitution Bench judgment of the Supreme Court in the case of State of Punjab v. Baldev Singh, (1999) 6 SCC 172.
iii) That there has been violation of Sec. 42 of the Act while effecting seizure of the alleged contraband item.
iv) That the FSL report in original was not a part of the Final Police Report submitted by the Investigating Officer under Sec. 173 Cr.P.C. and the Photostat copy of the FSL report was of no evidentiary value. The case of the prosecution is, therefore, bound to fail. In these circumstances, the Trial Court should have enlarged the petitioner on bail.
v) That the procedure adopted by the Investigating Officer while collecting the sample and sending it to FSL for chemical examination was not proper. The prosecution case is that a charas like substance wrapped in maize leaves was recovered from the possession of the petitioner without indicating as to how many maize leaves in all were recovered from the possession of the petitioner and as to whether the sample of the alleged contraband item wrapped in each maize leaf was picked up. It is submitted that in the absence of proper procedure having been followed the case of the prosecution is bound to fail and in these circumstances the petitioner cannot be kept in jail pending trial.
vi) That the petitioner is suffering from many life threatening ailments and in case he is kept in incarceration for long he may lose his life without proper treatment.
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