Pushpendra Singh Bhati, J.

The petitioners have preferred this criminal misc. petition under Section 482 Cr.P.C., 1973 for quashing the criminal proceedings against the petitioners pursuant to the charge sheet No. 75/2012 dated 05.03.2012 arising out of FIR No. 552/2011 registered at Police Station Nimbahera, for the offence under Section 8/18, 25 & 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as 'the NDPS Act').

2. The criminal proceedings were initiated against the petitioners pursuant to the charge sheet No. 75/2012 dated 03.03.2012 arising out of FIR No. 552/2011 at Police Station Nimbaheda for the offences under Sections 8/18, 25 & 29 of the NDPS Act. The criminal proceedings are going on against the present petitioners before learned Special Judge (NDPS Act Cases), Chittorgarh.

3. The brief facts of the case as noticed by this Court are that on 10.09.2011, a police team headed by Sub-Inspector Kamal Chand of Police Station Nimbaheda along with other Head Constables and Constables conducted a Nakabandi in which a Maruti Zen Car bearing registration No.MP09 HB 3330 coming from Neemuch was stopped by Kamal Chand, Sub-Inspector. When the said car did not stop, it was forced to stop and on search in front of independent Motbir, it was revealed that there was a plastic bag containing three polythene bags having contraband weighing 14 kilograms along with two samples of 30 grams each separately. And the remaining articles and samples were sealed. All the four petitioners were arrested and given a notice under Section 52 of the NDPS Act. Six persons were taken to the police station where a case No. 552/2011 for the offence under Section 8/18 of the NDPS Act was registered and the seized articles were deposited in the Malkhana. The petitioners have been charge-sheeted for the offences under Sections 8/18 & 8/25 of the NDPS Act. The criminal trial is going on after registration of criminal case No. 22/2012.

4. At the outset, learned counsel for the petitioner has confined his arguments that the proceedings were initiated by Kamal Chand, Sub-Inspector who was not posted as Station House Officer but was holding the post of Station House Officer in the absence of Station House Officer and thus, was not empowered to make search and seizure under the NDPS Act. The bail applications moved by the petitioners were allowed by a coordinate Bench of this Court vide order dated 30.07.2017. The bail order is a speaking order and the sole reason for granting the bail was the proceedings being conducted by Kamal Chand, Sub-Inspector who was not empowered and ought to have brought the petitioner before the competent officers. The order dated 30.07.2012 passed by a coordinate Bench of this Court reads as follows:

"Heard learned counsel for the petitioners and the learned Public Prosecutor and perused the material available on record.

The contention of the present petitioner is that they have been implicated falsely and the proceedings have been conducted in violation of the mandatory provisions of Section 42 of the NDPS Act. The search was made by the Sub Inspector of Police, who was not posted as Station House Officer at the relevant time and hence the search and seizure are in contravention of the provisions. Hence, they should be released on bail. Reliance has been placed on the judgments reported in Raju Munim v. State of Rajasthan [2006 (3) WLC (Raj.) 392] and Roy V.D. v. State of Kerala [2000 AIR SCW 4005].

Per contra, the contention of the learned Public Prosecutor is that the Station House Officer, at the relevant time, was not at the police station and Sub Inspector Kamal Chand was holding the charge of the Police Station. Hence, he was empowered under the provisions of the NDPS Act for search and seizure.

It is not in dispute that Kamal Chand was Sub Inspector at the relevant time and rojnamcha of the Police Station also suggests that at the relevant time, the SHO was not at the police station