The court emphasized strict adherence to statutory provisions in drug-related cases, ruling that unauthorized search and seizure render proceedings illegal, thus justifying bail.

ORDER :

FARJAND ALI, J.

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. The petitioner is behind the bars since 17.07.2022. Counsel for the petitioner has submitted certified copies of the order sheets of the trial Court which is reflecting non-appearance of the prosecution witnesses. An ordersheet dated 29.08.2024 revealing recording of three witnesses out of total 19 witnesses and whereafter, no witness has been examined till date. His first bail application being SBCRLMB No.3579/2024 decided on 01.04.2024 was dismissed as not pressed but a liberty was given to the petitioner to renew the prayer for bail after recording the statement of Seizing Officer. Now, he has been examined as P.W. 2 in the trial, hence, the instant bail application.

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

6. Perusal of the record revealing that admittedly, the seizure of the contraband in this case recovery was effected by Laxmi Lal, Sub-Inspector who intercepted a vehicle made search and seized material and arrested the accused he is examined as P.W.2 in trial. 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-2 in the trial. At Page No.4 of his testimony, he candidly admitted that at the relevant point of time one Shivlal Meena was the SHO of the Police Station Gangrar. Indisputably the search and seizure was made after the sunset but no warrant was obtained for making search in the night. At page No.4 of his statement he admits that there was no memo in accordance with Gazeete Notification No.1/1986 a per which, only those Sub-Inspectors are authorised to effect search and seizure who are posted as SHO. 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”.

7. 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 f