ORDER :

1. The instant bail application has been filed by the petitioner Rajmal @ Raju Banjara S/o. Bherulal Banjara under Section 439 Cr.P.C against the order impugned dated passed by learned court below in connection with FIR No.200/2021 registered at Police Station Kareda, District Bhilwara for the offences under Sections 8/15 of NDPS Act.

2. Learned counsel for the petitioner submits that a false case has been foisted against the petitioner. He has nothing to do with the alleged offences and no useful purpose would be served by keeping him behind the bars. There are several flaws and laches in the case of the prosecution. He submits that the seizing officer had been informed by the CID CB officers about the presence of narcotic substance in the seized vehicle bearing registration No. RJ30 GA 6260 before he left to conduct search and seizure, yet the seizing officer did not relay the above-mentioned information to the senior officers before proceeding further which is mandatory under Section 42 of NDPS Act and thus, the entire process of recovery stands vitiated on this count because of non-compliance of Section 42 of NDPS Act, therefore, the fetter contained under Section 37 of the NDPS Act does not come in way of releasing the petitioner on bail.

3. 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 240 kilograms of poppy husk, thus, the impediment contained under Section 37 of NDPS Act will be attracted in the factual situation of the present case.

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

5. Right from inception, before progressing for the purpose of conducting search and seizure of the alleged contraband, the seizing team was having the information regarding the transportation of contraband which fact is apparent from a bare perusal of the ‘Hukmnama’ issued to constable Rajendra Kumar which is reproduced herein below for ready reference:-

^^tfj;s gktk vkidks fy[kk tkrk gS fd bejkst lh0 vkbZ0 Mh0 lh0 ch0 dh lwpuk ds vuqlkj nkSjkus ukdkcanh idM+s x;s Jh bZ'oj yky firk Lo0 Jh nsokyky xqtZj mez 32 lky fuoklh xksjk.kk ¼Kkuxढ+½ Fkkuk djsMk ftyk HkhyokMk o Jh jktey mQZ jktq firk Jh HkS:yky catkjk mez 36 lky fuoklh rstiqjk jkfTk;kokl Fkkuk dkadjksyh ftyk ¼jktlean½ ds dCts 'kqnk fidvi uEcj RJ30 GA 6260 esa dksbZ lafnX/k eknd inkFkZ vQhe MksMk pwjk gksuh dk iw.kZ laHkkouk gS mDr fidvi dh ryk'kh Yksuh gS ftlesa nks Lora= ekSrfcjku dh vko';drk gSA**

6. Now, there remains no question to moot about the fact that there was previous information with the seizing officer regarding transportation of illegal substance defined as contraband as per the provisions of NDPS Act, thus, the provision envisaged under Section 42 of NDPS Act would squarely apply in this case.

7. The prosecution has failed to prove the case beyond every shadow of reasonable doubt as it has not been proved that the information was properly supplied to the superior officer according to Section 42(2) of NDPS Act. There is neither any proof of dispatching of the information to the superior officer nor is there any proof that reflects that the same was sent or received and lastly, there is nothing on record to show that there was acknowledgment on part of the superior officer upon receiving the information which is mandatory in nature.

8. It is an admitted position that no compliance of Section 42(2) of NDPS Act was made in this present case as the Seizing Officer PW1-Surendar Godara (Sub-Inspector) candidly admitted in his cross-examination that no information under section 42(2) was supplied to higher officers before proceeding for the search and seizure of contraband. For ready reference, the relevant part of the cross-examination of the seizing officer is quoted below:-

^^;g dguk lgh gS fd eq>s lhvkbMh lhch ds vf/kdkfj;ksa ls lwpuk feyus ds ckn dk;Zokgh ls igys ;k dk;Zokgh ds nkSjk