ASHOK Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant application for bail has been filed under Sec. 439 Cr.P.C. on behalf of the petitioner Ashok @ Mulla Ram, who is in custody in relation to F.I.R. No.206/2022, Police Station Merta City, District Nagaur, for the offence under Sec. 8/21 of the NDPS Act.

(2.) His first bail application came to be rejected by this Court vide order dtd. 19/12/2022 (S.B. Criminal Misc. Bail Application No.9224/2022) while giving liberty to the petitioner to renew his prayer after the statement of Investigating Officer is recorded in the trial and now, the statement of P.W. 1 Bhanwar Lal as well as the SHO P.W. 2 Rajveer Singh has been recorded by the learned trial Court on 19/4/2023 and 18/5/2023. Hence, the present bail application.

(3.) Learned counsel for the petitioner 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. Admittedly, P.W. 1 Bhanwar Lal was not posted as SHO of the Police Station Merta City and rather inspector Rajveer Singh was posted as SHO at the relevant point of time.