Procedural irregularities in search and seizure under the NDPS Act justify granting bail, emphasizing constitutional rights and necessity for compliance with statutory mandates.

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. In nutshell, the facts of the case are that on 19.08.2023 Incharge of PS Nimbahera along with his team near Ahirpuri during nakabandi intercepted a Swift Car bearing registration No.PB30 X4183, which was driven by driver Bhagwat Singh alongwith his companion Harzinder Singh. During search, 8 plastic bags (weighing 8 Kg 240 gms) containing opium got recovered from the said vehicle whereafter, after following usual process, the petitioners were arrested and case under Section 8 /18 of the NDPS Act got registered.

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 perused the material available on record.

5.1. A meticulous perusal of the record reveals that on 19.08.2023, during a nakabandi operation near Ahirpuri, the Incharge of Police Station Nimbahera intercepted a Swift car bearing registration number PB30 X 4183. The vehicle, driven by Bhagwat Singh and accompanied by Harzinder Singh, was searched, leading to the recovery of eight plastic bags containing a total of 8.240 kilograms of opium.

5.2. From the statement of PW-7, Bhagwat Singh, it is evident that the team departed the police station at 10:54 hours, proceeding towards the blockade without the presence of Motbir, who was later summoned on suspicion of involvement in illicit activity. The witness denied any knowledge of Motbir acting as a police pocket witness or his involvement in other cases. It was admitted that Virendra Singh, the Circle Inspector, was the police station in-charge, and no formal handover of charge was made to Bhagwat Singh, the senior-most Sub-Inspector present. The applicability of the 1/86 Gazette Notification was acknowledged, under which Bhagwat Singh was not appointed as Station House Officer (SHO).

5.3. The vehicle was stopped by a hand signal from approximately 200 meters away. Subsequently, a personal search notice under Section 50 of the CRIMINAL PROCEDURE CODE was issued, initially to Harjinder Singh. This notice was typed by Jeevan Lal, who did not provide a certificate under Section 65B of the Indian EVIDENCE ACT . Despite clear indications of contraband, the investigating officer failed to prepare any immediate memorandum or slip recording the seizure.

5.4. The officer candidly admitted non-compliance with multiple mandatory procedural safeguards under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. Notably, no consent was obtained for the search from any gazetted officer or judicial magistrate; no reasons were recorded for personally conducting the search; no Fard (detailed report) was prepared as mandated by subsection 5.6 of Section