The improper conduct of search and seizure under relevant law invalidates the charges and warrants bail.

ORDER :

Farjand Ali, J.

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 concise facts of the case as alleged in the FIR are that on 12.09.2022 Sub-Inspector Kailash Chand gave a report to the effect that after leaving nakabandi, SHO informed about an Innova car bearing registration no. GJ12 DA 8136, the driver of which had turned his car towards Bijolia after seeing the police at Undro ka kheda and instructed them to intercept and check the vehicle. On this, the team reached Kesuvillas road and after sometime the aforementioned car was seen coming in high speed. On spotting the police, the driver turned around the car towards Rampuriya and after chasing the car for a while, the car stopped at Govardhan village. One person got down from the car and tried to flee from the spot, thereafter, the police apprehended the accused-petitioner and the search and seizure of the alleged contraband(s) was conducted and poppy husk weighing 399 kg was allegedly recovered from the car.

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 Section 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. 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.

4. 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.

5. Have considered the submissions made by both the parties and have perused the material available on record.

6. Section 41 of NDPS Act has been reproduced under for reference:

41. Power to issue warrant and authorisation.-(l) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by ni