IMPORTANT POINT
The court established that only authorized officers under the NDPS Act can conduct searches and seizures, and failure to comply with these provisions renders the evidence inadmissible, impacting the prosecution's case significantly.

ORDER :

1. The jurisdiction of this court has been invoked by way of filing an instant applications under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein-below:

2. The first bail applications of the petitioners were dismissed as not pressed vide order dated 30.10.2023 (S.B. Criminal Misc. Bail Application Nos.12501/2023 & 11061/2023) but a liberty was afforded to them to renew the prayer for bail after the statements of Investigating Officer and Seizing Officer are recorded. Now, the statements of both Investigating Officer and Seizing Officer are recorded. Hence, these bail applications.

3. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and their incarceration is not warranted. There are several flaws and laches in the case of the prosecution. They submit 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 petitioners 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-petitioners and they have been made an accused based on conjectures and surmises.

4. Contrary to the submissions of learned counsel for the petitioners, 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 the case of defence that the Seizing Officer was neither posted as SHO nor any charge of the concerned Police Station was given to him. Rajveer Singh, the Sub-Inspector who conducted the search and seizure has been examined in the trial and he has categorically stated in cross-examination that one Shanti Lal was the SHO posted at the concerned police station and he was second in command. He has further stated that whenever a senior officer posted at a police station is present in the area falling under the jurisdiction of that police station, then he is the in-charge of that police station and has admitted that the then SHO was in fact, present in the jurisdictional area of the concerned police station. He has further admitted that there is nothing in writing, neither on record nor in the Roznamcha, which can prove the fact that the SHO handed over the charge of the police station to him. Now, this court deems it appropriate to discuss the law prevalent in the matter.

6. The NDPS Act is a statute comprising of stringent provisions which need to be followed in letter and in spirit and non-compliance of any stipulations specially the ones relating to the procedure followed during search, seizure and arrest, cannot be overlooked.

7. While enacting Section 42 of NDPS Act, the legislature put a complete ban on authorities beyond the ones mentioned in the Section to carry out the functions under the Act. The legislature has clearly empowered the persons mentioned therein and it has also been specifie