IMPORTANT POINT
Strict adherence to the NDPS Act's provisions regarding search and seizure is essential; failure to comply can lead to the invalidation of evidence and grant of bail.

ORDER :

Farjand Ali, J.

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

2. The first bail application being SBCRLMB No.5256/2024 was dismissed as not pressed by this Court vide order dated 14.05.2024 but a liberty was afforded to the petitioner to renew the prayer for bail after recording the statement of Bhanwar Lal, Sub-Inspector. Now, Sub-Inspector Bhanwar Lal has been examined in the trial as P.W. 1. Hence, the instant bail application.

3. Briefly stated the facts of the case are that on 25.09.2023 the SHO, PS Bilara received a telephonic information from ASI Manphool, CID, CB, Jaipur that huge quantity of poppy husk would be illegally transported in a White Creta Car bearing registration No. RJ45 CP6019 and a White Swift Desire Car bearing registration No.OD10 P3168 coming from Beawar to Jodhpur. On the basis of the said information, the SHO, PS Bilara alongwith his team during nakabandi at about 1:10 p.m. on seeing the police party, the drivers of the said Creta Car (Shrawan) and Swift Car along with one other turned down and tried to escape from the spot in high speed. During that course, the accused left their vehicles and run towards the dirt road. At some distance, the SHO Pipar caught one person who disclosed his name as Shrawan, while escaping he received injury on his leg. The other two persons were having 12 bore gun in their hands were also apprehended. They disclosed their names as Hadman Ram and Mahesh. All the accused persons were detained and during search 11 bags of poppy husk weighing 252.300 grams were recovered from Creta Car RJ45 CP6019 and 9 bags of poppy husk and Rs.56,090/- were recovered from the rear seat of Swift Car. After search and seizure, Seizing Officer took samples, marked them and sent the same to the FSL for chemical examination and a case under Section 8/15 of the NDPS Act, Section 3/25 and Section 27 of the Arms Act and Section 307 of the IPC got registered. The accused were arrested.

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 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. He further submits that the accused was taken into custody on 25.09.2023 and since then he is behind the bars. Now, more than one year has been elapsed but the trial is not going to be culminated and still it seems that further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail.

5. 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.

6. Have heard and considered the submissions made by both the parties, Investigating Officer and have perused the challan papers and the other material available on record.

7. The specific plea has been taken regarding non-compliance of Section 42 of the NPDS Act which is a mandatory provision in nature. Admittedly the Sub-Inspector Bhanwar Lal conducted search and seizure in the matter was not a posted SHO rather at the relevant point of time three Sub-Inspectors were posted at the Bilara Police Station. In the entire file not a single paper is there in record to establish the fact that Bhanwar Lal was posted as SHO of the Police S