ORDER :

1. This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No. 400/2021 registered at Police Station Nimbahera Sadar, District Chittorgarh for the offence under Section 8/15 of the NDPS Act.

2. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

3. Learned counsel for the petitioner submitted that as per prosecution, contraband (poppy husk/straw) weighing 95 kg. 500 gm. was recovered from the conscious possession of the present petitioner and co-accused Chandraveer on 15.10.2021. Learned counsel submitted that co-accused Chandveer and Akshay have already been enlarged on bail by a co-ordinate Bench of this Court vide order dated 15.09.2023, passed in S.B. Criminal Misc. 3rd Bail Application No. 6952/2023 and S.B. Criminal Misc. 2nd Bail Application No. 5723/2023. Learned counsel submitted that from the perusal of the order passed by co-ordinate Bench of this Court in the case of Chandraveer (supra), it is evident, that co-ordinate Bench of this Court has found that the various provisions contained in Section 42 of the NDPS have not been complied with in the present case. Learned counsel submitted that noncompliance of the mandatory provisions of the NDPS Act has to be viewed seriously by the Courts.

4. Learned counsel further submitted that the case of the present petitioner is not distinguishable from that of the abovenamed co-accused persons who have already been enlarged on bail; the petitioner is in judicial custody and the trial of the case will take sufficiently long time.

5. On these grounds, he implored the court to enlarge the petitioner on bail.

6. The order dated 15.09.2023 passed in S.B. Criminal Misc. 3rd Bail Application No. 6952/2023 is reproduced for ready reference:

“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 p