Compliance with the NDPS Act's provisions on search and seizure is crucial; unauthorized actions can lead to the invalidation of proceedings.

JUDGMENT :

(Anil Kumar Upman, J.) :

1. The instant third bail application has been filed under Section 439 Cr.P.C. on behalf of the accused-petitioner who is in custody in connection with FIR No.357/2023, Police Station Bhankrota, District Jaipur (West) for offences punishable under Sections 8/21, 8/22 and 8/25 of the NDPS Act. After investigation, police filed charge-sheet before the learned court below.

2. The second bail application preferred by the petitioner was dismissed as withdrawn with liberty to renew the prayer for bail after recording statement of the Seizure Officer. Now, seizure officer has been examined during the course of trial. Thus, this third bail application has been preferred.

3. It is contended by learned counsel for the petitioner that the accused petitioner has falsely been implicated in this case. He contends that petitioner has nothing to do with the alleged recovery of contraband opium.

4. It is also argued by learned counsel that mandatory provisions of Section 42 of the NDPS Act has also not been followed as search and seizure proceedings were conducted in between sunset and sunrise by the seizure officer but no memo of reasons/grounds for conducting search and seizure proceedings during sunset and sunrise, was prepared by the seizure officer. He places reliance upon judgment of Hon’ble Supreme Court in the case of State of Orissa vs. Laxman Jena, reported in (2009) 16 SCC 332.

5. Learned counsel for the accused petitioner submits that that the accused-petitioner has falsely been implicated in this case and the proceedings have been conducted in violation of the mandatory provisions of the NDPS Act. He draws the Court's attention to the provisions of Section 42 of the NDPS Act and contends that search proceedings were conducted by SI Rajendra Yadav and hence, the search and seizure are in contravention of the provisions. He also contends that only Sub Inspectors and inspectors, posted as Station House Officers, are empowered under Section 42 of the NDPS Act for search and seizure but here in this case, the seizure proceedings were conducted by SI Rajendra Yadav who was not posted as SHO of the Police Station Bhankrota, Jaipur at the relevant time. This fact is evident from the cross-examination conducted from SI Rajendra Yadav, who specifically stated that Sh. Mohan Meena was the SHO at that time. This issue was considered by the co-ordinate Bench of this court while deciding S.B. Criminal Misc. Second Bail Application No.7492/2023 (Ashok @ Mulla Ram vs. State of Rajasthan, decided on 19.08.2023) at principal seat and observed as under:-

“8. Section 42 of NDPS Act has been reproduced below for ready reference:-

42. Power of entry, search, seizure and arrest without warrant or authorisation.—(I) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveya