Strict compliance with the statutory procedure and the stringent provisions of the NDPS Act are crucial in determining the admissibility of evidence and granting bail, despite the quantity of contraband being an impediment under the Act.

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 second bail application of petitioner 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, seizure officer has been examined, hence the present second bail application is filed.

3. The concise facts of the case as alleged in the FIR are that on 17.12.2021 at around 03:03 p.m. a Honda Amaze bearing Registration No. RJ-03-CB-4117, wherein four persons including the present petitioner were sitting, was stopped by Head constable Dharma Ram. Upon opening the gate of the car, smell of contraband opium was emanating from therein. On conducting a search of the car he found three plastic bags containing contraband opium weighing one Kg each.

4. 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 latches in the case of the prosecution. He submits that the seizing officer, while undertaking proceedings for search and seizure, was posted as Head constable 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 Head constable 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. He further submits that the sanctity of the seizure made in the premises of police station is highly doubtful and no explanation furnished by the team members as to why the search and seizure was not made at the place where the vehicle was intercepted. 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.

5. Per contra, learned Public Prosecutor opposes the bail application and submits that the alleged recovered contraband is way above the demarcated commercial quantity, thus, the impediment contained under Section 37 of NDPS Act will be attracted in the factual situation of the present case.

6. Heard and perused the material available on record. The SHO candidly admitted in his cross examination that head constable Dharma Ram along with one Kishna Ram brought a detained vehicle at P.S. Sanchore on the suspicion that they were having contraband opium in their car wherein four persons were sitting. It is an admitted position that no compliance of Section 42(2) of NDPS Act was made in this present case as the SHO 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. There remains no question to moot about the fact that there was previous information with the seizing officer regardin