Only authorized officers can conduct searches and seizures under the NDPS Act; non-compliance with statutory procedures warrants bail.

Order :

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

2. 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.

3. 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.

4. I have heard and considered the submissions made by both the parties and have perused the material available on record.

5. Perusal of the record revealing that admittedly, the seizure of the contraband in this case was effected by one Shri Ajayraj Singh, Sub-Inspector, who was posted as second officer of the Police Station Begun, District Chittorgarh. There is no evidence for the nameshake on record to show that he was deployed in the Police Station in the capacity of “Station House Officer”. He has been examined as PW-1 in the trial. At Page No.4 of his testimony, he candidly admitted that at the relevant point of time one Bhagwan Lal was holding the post of Station House Officer and he was a second officer. There is nothing on record from which it can be inferred that he was having charge of Police Station for a limited period as “Station House Officer”. As per S.O. 1986, only those Sub-Inspectors are authorised to effect search and seizure of contraband who are working as a posted ”SHO”.

6. Sections 41 & 42 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 night, of any building, conveyance or place in which he has reason to believe 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:

(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer 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 in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article