ORDER :

1. The jurisdiction of this court has been invoked by way of filing an instant application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein-below:

2. The first bail application of petitioner Akshay came to be dismissed by this Court vide order dated 21.12.2022 with liberty to the petitioner to file afresh after filing of charge-sheet. The second bail application of petitioner Chandraveer came to be dismissed by this Court vide order dated 16.03.2023 as the matter pertained to recovery of contraband above commercial quantity and there were no favourable circumstances in favour of the petitioner apparent at that time. Now, I.O. has been examined, hence the present second bail application is filed.

3. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are several flaws and laches in the case of the prosecution. He 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. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises.

4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

5. Heard and perused the material available on record. It is pertinent to consider the entries made in the Roznamcha diary. As per entry no. 16 made on 15.10.2021 at 10:24 a.m. Mr. Phool Chand, who was posted as the SHO of P.S. Sadar Nimbahera, handed over the charge to ASI Shankar Lal. It is the case of the defence that the Seizing Officer Narulal was neither posted as SHO nor any charge of the concerned Police Station was given to him. According to entry no. 20 of the same day, SI Narulal took over the charge from ASI Shankar Lal and as per entry no. 22, he again shifted the charge towards Shankar Lal. Thereafter, entry no. 23 reflects that SI Narulal left for Nakabandi and in pursuance thereof, the vehicle pertaining to the present matter was intercepted; search and seizure of the same was conducted and the present FIR got lodged. The superintendent of police is authorised to appoint the SHO and the appointed SHO of the P.S. Sadar Nimbaheda is Mr. Phool Chand Tailor. Now, ideally, Phool Chand Tailor has the authority to handover the charge of the police station to an officer of an appropriate rank for a while when he is stepping out of the station which has been done by him as per entry no. 16. But, the same authority could not and did not exist with ASI Shankar Lal as the authority once delegated cannot be further deleg