IMPORTANT POINT
Non-compliance of mandatory provisions of NDPS Act has to be dealt with a strict hand.

ORDER

By The Court:—The instant application for bail has been filed under Section 439, Cr.P.C. on behalf of the petitioner Ashok @ Mulla Ram, who is in custody in relation to F.I.R. No.206/2022, Police Station Merta City, District Nagaur, for the offence under Section 8/21 of the NDPS Act.

2. His first bail application came to be rejected by this Court vide order dated 19.12.2022 (S.B. Criminal Misc. Bail Application No.9224/2022) while giving liberty to the petitioner to renew his prayer after the statement of Investigating Officer is recorded in the trial and now, the statement of P.W. 1 Bhanwar Lal as well as the SHO P.W. 2 Rajveer Singh has been recorded by the learned trial Court on 19.04.2023 and 18.05.2023. Hence, the present bail application.

3. Learned counsel for the petitioner submits that the seizing officer, while undertaking proceedings for search and seizure, was not posted as S.H.O. of the concerned police station. He vehemently contended that sub-section (1) of Section 42 of NDPS Act enumerates the power of officers specified therein who are duly empowered by the Central Government or the State Government as the case may be and as per the law, a Sub-Inspector is not empowered to effect search, seizure and arrest under the NDPS Act as the notification dated October 16, 1986 empowers only those Sub Inspectors of Police to exercise the powers under Sec. 42 of NDPS Act who are posted as State House Officers. Learned counsel for the petitioner vehemently submits that the mandatory provisions of NDPS Act have not been complied with, thus, on this count, the recovery of the contraband is vitiated. Admittedly, P.W. 1 Bhanwar Lal was not posted as SHO of the Police Station Merta City and rather inspector Rajveer Singh was posted as SHO at the relevant point of time.

4. Per contra, learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the petitioner and submits that the matter pertains to recovery of 100 Bottles of Moncof cough syrup. The impediment contained under Section 37 of NDPS, Act will be attracted in the factual situation of the present case.

5. Heard and perused the material available on record as well as gone through the statutory provisions applicable in the matter.

6. It is the case of the prosecution that on 10.06.2022 the Seizing Officer Bhanwar Lal, Sub-Inspector was having charge of the police station and the reason shown behind it was that the SHO Rajveer Singh was not in the Police Station and the charge was given to him. It is stated that when the Sub-Inspector Bhanwar Lal was on patrol duty, he apprehended the petitioner since his activities appeared to be suspicious. Certain quantity of medicinal drug viz., Monocof Cough Syrup were recovered from a carton which the accused was carrying with him. Admittedly, the entire search and seizure was made by the Sub-Inspector Bhanwar Lal and where-after the investigation was conducted by the then SHO Rajveer Singh who was deployed there as SHO. It is the case of the defence that the Seizing Officer Bhanwar Lal was neither posted as SHO nor any charge of the concerned Police Station was given to him. Now, this court deems it appropriate to discuss the law prevalent in the matter.

7. The NDPS Act is a statute comprising of stringent provisions which need to be followed in letter and in spirit and noncompliance of any stipulations specially the ones relating to the procedure followed during search, seizure and arrest, cannot be overlooked.

8. Section 42 of NDPS Act has been reproduced below for ready reference:—

42. Power of entry, search, seizure and arrest without warrant or authorisation.—(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central