Non-compliance with mandatory provisions of the NDPS Act regarding authorized officers conducting searches renders the recovery illegal, prioritizing the fundamental right to a speedy trial over statutory restrictions on bail.

Order :

(FARJAND ALI, J.)

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

2. The first bail application being SBCRLMB No.2240/2024 was dismissed as not pressed by this Court vide order dated 16.05.2024 but a liberty was afforded to the petitioner to renew the prayer for bail after recording the statement of Seizure Officer. Now, She has been examined in the trial as P.W. 2. Hence, the instant bail application.

3. Brief Facts of the case are that on 24.06.2023 at approximately 7:40 p.m. at the non-inhabited colony Laxmi Plaza Rohi Dulmana, on the road from Pilibanga to Hanumangarh, Ms.Rajandeep Kaur, Sub-Inspector, Acting SHO, Police Station Pilibanga intercepted a Truck No.RJ19 GG-1335 and recovered 215 kg of poppy husk from 10 black plastic bags, each containing 20 kg. and 1 light sky blue plastic bag containing 15 kg. The accused were identified as Poonamram and Bhupendra alias Boota, who were jointly traveling in the truck. After seizure, the accused were arrested and an FIR No. 437/2023 got registered under Sections 8/15 and 25 of the NDPS Act at Police Station Pilibanga.

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 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. He further submits that the accused was taken into custody on 24.06.2023 and since then he is behind the bars. Now, more than one year has been elapsed but the trial is not going to be culminated and still it seems that further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail.

5. 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.

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

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 Ms. Rajandeep conducted search and seizure in the matter was not a posted SHO rather at the relevant point of time Vijay Meena, Sub-Inspector was posted at the Police Station Pilibanga. In the entire file not a single paper is there in record to establish the fact that Ms. Rajandeep was posted as SHO of the Police Station Pilibanga. 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. In an identical matter Satya Narayan @ Sattu Vs. State of Rajasthan, this Court vide order dated 09.11.2023 passed in SBCRLMB No.3678/2023, this Court has observed that only the posted SHO is authorised to conduct search and seizure. The relevant paras of the said order is being reproduced as under:-

5. 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 Lakshmilal, the Sub-Inspector who conducted the search and seizure has been examined in the trial and he has categorically stated in cross-examination that one Shivraj was the SHO posted at the concerned police station. He has further admitted that there is nothing