Mandatory compliance with procedural safeguards under Section 42 of the NDPS Act is crucial for lawful search and seizure; failure to comply invalidates recovery.

ORDER :

Farjand Ali, J.

The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 16.11.2022 passed by the learned Special Judge, NDPS Act No. 2, Chittorgarh in Sessions Case No.172/2019 whereby he was convicted under Sections 8/15(c) of NDPS Act and sentenced to suffer maximum 10 years rigorous imprisonment along with a fine of Rs.1,00,000/- and in default to further undergo two month of rigorous imprisonment.

2. It is contended on behalf of the applicant that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. He submits that the seizing officer had been informed about the presence of narcotic substance in the car of the petitioner before he left to conduct search and seizure, yet the seizing officer did not relay the above-mentioned information to the senior officers before proceeding further which is mandatory under Section 42 of NDPS Act and thus, the entire process of recovery stands vitiated on this count because of non-compliance of Section 42 of NDPS Act. He further 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, 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.

3. 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.

4. 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. PW.1 Rajaram, the Sub-Inspector who conducted the search and seizure has been examined in the trial and he has categorically stated in cross-examination that he was second in command at 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. This court has passed a detailed order dated 09.11.2023 in this regard in S.B. Criminal Misc. II Bail Application No. 3678/2023 titled Satyanarayan @ Sattu S/o Jeetmal Jat v. State of Rajasthan, the relevant portion of the order is reproduced here as under:-

"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 specified through the notification No. F. 1(3) FD/EX/85-I, dated 16-10-86 as to who are authorised to do so.

8. Chapter V of the NDPS Act specifically provides that only the officers mentioned and empowered therein can give an authorisation to a subordinate to arrest and search if such officer has reason t