The court emphasized that compliance with mandatory provisions under the NDPS Act is vital, and any breach renders the proceedings invalid, warranting bail at the pre-conviction stage.

ORDER :

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

2. The concise facts of the case as alleged in the FIR are that on 26.11.2022, Shri Shailesh Chandra, SI, SHO Sangariya, Hanumangarh intercepted a Truck being driven by the petitioner and during search, 822 Kg poppy husk got recovered from the said vehicle. After search and seizure, an FIR got registered and petitioner was arrested and since then he is behind the bars. Now, around two years have lapsed, 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. 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 the petitioner has been arrested on 26.11.2022 in connection with recovery of 822 Kg Poppy husk. The Seizure was effected by Sub-Inspector Shailesh Chandra and he admitted in his cross examination that there is no entry in the case file which pertains to any report in the Roznamcha (Daily Diary) made by him in the capacity of SHO, Police Station Sangaria. As per Notification No.1/86, only those Sub-Inspectors are competent to effect search and seizure of the contraband who are the posted SHO. Furthermore, it is revealing from the record that till date out of total 24 projected witnesses, statements of only 5 witnesses have been recorded in the trial.

6.1. As per Standing Order No. 1 of 1986, only Sub-Inspectors who are officially designated as Station House Officers are competent to carry out search and seizure under the NDPS Act. Not all Sub-Inspectors are authorised to undertake such actions. Prima facie, there is merit in the argument that the seizure in this case was made by an unauthorised officer as there was no document on record showing that the officer concerned held charge of the concerned police station at the time the search and seizure was conducted.

6.2. In light of the above facts and legal inconsistencies, this Court is of the view that Section 37 of the NDPS Act would not be attracted in the instant case.

6.3. The NDPS Act is a statute comprising of stringent provisions which need to be followed in letter and in spirit and non- compliance of any stipulations specially the ones relating to the procedure followed during search, seizure and arrest, cannot be overlooked.

6.4. 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.

6.5. Chapter V of the NDPS Act specifically provides that only the officers mentioned and empowered therein can