JUDGMENT :

1. Heard learned counsel for the applicant and Shri Akhilesh Kumar Awasthi, learned counsel for the and perused the record.

2. The accused-applicant, who alleges that he was the driver of the vehicle in question, seeks bail in Case Crime No.29 of 2021 under section 8/21/25/29 N.D.P.S. Act, P.S. - N.C.B. Lucknow, District-Lucknow.

3. From the documents on record, it appears that on 12.07.2021, a search was carried out based upon the information received from the informers that huge quantity of drug is being transported. From the search memo, which is on record indicates that on receiving the said information, the team of the Narotics Control Bureau, Lucknow reached Chauka Ghat Railway Crossing and on their call the police team of the Police Station-Ram Nagar also arrived. The memo also records in terms of the information received, at about 10:15 P.M., one Honda WRV Car was passing which was stopped and in the said car, two persons were sitting who are Mohammad Imran and Wahid Ali (applicant). It is further recorded that the said two persons confessed before the team of N.C.B. Lucknow the aforesaid fact of carrying drugs. The memo also records that the N.C.B. team duly informed the accused of their rights under Section 50 of the Act, the said applicant wanted the search to be carried out in the presence of Gazetted Officer and for complying with the provisions of Section 50, the Circle Officer Ram Nagar-Shri Dinesh Kumar Dubey was contacted and was requested to come over the spot. It further alleges that in presence of the said Gazetted Officer both the persons were searched in person and nothing was found with them in person. However, when the car was put on search, Morphine was recovered which was kept in a White Bag weighed at 2.250 Kg along with currency notes of an amount of Rs. 2,00,000/-. The search memo on record contains the signature of the two accused as well as the officer of N.C.B. Lucknow. Howsoever, it does not include the signature of the Gazetted Officer-Shri D.K. Dubey, in whose presence the search was said to be carried out. In pursuance to the search carried out and the recovery memo, the samples were sent by the N.C.B. for chemical analysis and the accused were apprehended for being tried under the N.D.P.S. Act. It is informed that subsequently a criminal complaint has been filed against the said two accused in the competent court of law and the trial is going on. The present bail application has been filed as the first bail application filed by the applicant was rejected on 12.08.2021 by the learned Special Judge, N.D.P.S. Court at Barabanki.

4. The Counsel for the applicant argues that there are substantial illegalities in the manner in which the search and seizure has been carried out. He argues that admittedly as per the recovery memo, the search was carried out on persons as well as in the vehicle and allegedly in the presence of a Gazetted Officer. He argues that the Gazetted Officer has not signed the recovery memo, which is also accepted by the learned counsel for the respondent. In the light of the said deficiency, he argues that the entire recovery becomes suspect. He also draws my attention to the mandate of Section 50.

5. He specifically places reliance on Section 50 sub-section 5 to argue that the search has to be carried out in terms of the mandate of Section 100 of the Code of Criminal Procedure. He draws my attention to Section 100 of the Cr.P.C. which is as under:

"100. Persons in charge of closed place to allow search.

(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provide