CHANDRAVEER Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The jurisdiction of this court has been invoked by way of filing an instant application under Sec. 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below: <IMG>JUDGEMENT_152_LAWS(RAJ)9_2023_1.jpg</IMG>

(2.) The first bail application of petitioner Akshay came to be dismissed by this Court vide order dtd. 21/12/2022 with liberty to the petitioner to file afresh after filing of chargesheet. The second bail application of petitioner Chandraveer came to be dismissed by this Court vide order dtd. 16/3/2023 as the matter pertained to recovery of contraband above commercial quantity and there were no favourable circumstances in favour of the petitioner apparent at that time. Now, I.O. has been examined, hence the present second bail application is filed.

(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 several flaws and laches in the case of the prosecution. He submits that the seizing officer, while undertaking proceedings for search and seizure, was not posted as S.H.O. of the concerned police station. He vehemently contended that sub-sec. (1) of Sec. 42 of NDPS Act enumerates the power of officers specified therein who are duly empowered by the Central Government or the State Government as the case may be and as per the law, a SubInspector is not empowered to effect search, seizure and arrest under the NDPS Act as the notification dated October 16, 1986 empowers only those Sub Inspectors of Police to exercise the powers under Sec. 42 of NDPS Act who are posted as State House Officers. Learned counsel for the petitioner vehemently submits that the mandatory provisions of NDPS Act have not been complied with, thus, on this count, the recovery of the contraband is vitiated. There are no factors at play in the case at hand that may work against grant of bail to the accusedpetitioner and he has been made an accused based on conjectures and surmises.