IMPORTANT POINT
The court ruled that searches conducted by unauthorized officers under the NDPS Act are illegal, warranting the grant of bail due to prolonged detention without trial.

ORDER :

1. The jurisdiction of this Court has been invoked by way of filing 3rd bail 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 first and second bail applications filed on behalf of the petitioner being SBCRLMB Nos.12035/2023 & 2438/2024 came to be dismissed as not pressed by this Court vide orders dated 07.10.2023 & 29.04.2024 with liberty to file afresh after statement of the IO is recorded in trial. Now, Investigating officer has been examined, hence, the instant bail application.

3. Brief facts of the case are that on 25.07.2022, Bhanwarlal, SHO PS Pindwara intercepted a Bolero Pickup bearing registration No. RJ21-GC-4190 wherein Mahendra Kumar was driving the vehicle and Bhajna Ram were found sitting therein. Upon search, 694 Kg 750 gms poppy husk came to be recovered. After search and seizure, the accused were arrested and samples were taken by the IO for sending the same to the FSL for it chemical examination. A case under Sections 8/15 & 29 of the NDPS Act got registered against them.

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 is high probability that the trial may take long time to conclude. 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.

5. Contrary to the submissions of Shri Javri Lal, brother of the accused, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

6. I have considered the submissions made by both the parties and have perused the material available on record as well as challan papers.

7. The petitioner is behind the bars since 26.07.2022. Now, more than two years have elapsed and there appears no hope of culmination or conclusion of the same in the near future, owing to the large number of prosecution witnesses who have not been examined till now, therefore, though for the limited purpose of justifiable disposal of bail application only but this court is persuaded to go into the niceties of the matter.

8. This Court vide order dated 24.10.2024 passed in S.B. Criminal Miscellaneous 2nd Bail Application No. 13429/2024 (Mukesh Vs. State) in the similar nature of matter wherein the petitioner therein has been enlarged on bail. For ready reference the relevant part of the said order is reproduced herein-under:

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 Bhanwarlal 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 Bhanwarlal was posted as SHO of the Police Station Bilara. The law in this regard is no more res-integra that only those Sub-Inspectors are authorised to conduct search and seizure under the NDPS Act who are posted as SHO of the Police Station. The Standing Order of 1986 is very much clear on this aspect. While dealing with the identical issue, this Court vide order dated 09.11.2023 in the matter of Satya Narayan @ Sattu Vs. State of Rajasthan at the time of deciding the second bail application being SBCRLMB No. 3678/2023 has passed the following order:

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3. It is contended on behalf of th