The mandatory compliance with procedural safeguards in the NDPS Act is crucial for a valid recovery; failure to adhere to these provisions undermines the prosecution's case and warrants bail under fundamental rights.

ORDER :

Farjand Ali, J.

1. The jurisdiction of this Court has been invoked by way of filing 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 concise fact of the case is that on 11.09.2023, Aswhok Kumar SHO PS Gumanpura alongwith his team during nakabandi intercepted a Bolero Camper No.RJ19 GH7398, which was driven Vilkas. During search, in all ten plastic sacks of poppy husk got recovered. The total weight of these sacks was 122.7 Kg. After usual process, a case under Section 8 /15 & 25 was registered, the petitioner was arrested. His first and second bail applications being SBCRLMB No.9923/2024 and 16118/2024 were dismissed by this Court vide orders dated 28.08.2024 & 20.01.2025. 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. He further submits that the petitioner is behind the bars for last two years and he is not having any criminal antecedent. He further submits that the seizing officer had not informed about the compelling reasons for which they conducted search and seizure after sunset which is mandatory under Section 42 of NDPS Act and thus, the entire process of recovery stands vitiated on this count because of non-compliance of Section 42 of NDPS Act . The petitioner is behind the bars around two years. 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 considered the submissions made by both the parties and have perused the material available on record.

5. Perusal of the record revealing that the petitioner is behind the bars since 11.09.2023 and the co-accused Bhanwarsingh @ Balwantaram has already been enlarged on bail vide order dated 01.07.2024 passed in S.B. Criminal Misc. II Bail Application No. 6656/2024. Further the circumstances surrounding the recovery, as projected by the prosecution, are rendered doubtful owing to material lapses attributable to the police team. It stands admitted in cross-examination by the seizing officer himself that no compliance with Section 42 (1) of the NDPS Act was effected. No prior intimation was supplied to superior officers, nor were the reasons recorded which could have justified dispensing with a search warrant or authorisation.

5.1. The mandatory safeguard envisaged in the second proviso to Section 42 (1): requiring an empowered officer to record the grounds of belief and communicate the same forthwith to his immediate superior before undertaking a warrantless search between sunset and sunrise was wholly disregarded. The NDPS Act , being a stringent and draconian legislation, obligates strict and literal adherence to its procedural mandates.

5.2. In State of Rajasthan v. Jagraj Singh @ Hansa [(2016) 11 SCC 687], the Hon’ble Supreme Court unequivocally held that total non-compliance with Section 42 (1) is fatal to the prosecution and such compliance is mandatory. In the present case, the admitted omission strikes at the root of the prosecution’s case.

5.3. Apart from this, allegations of bre