JIWANSINGH Vs. STATE

JUDGEMENT

(1.) Accused-petitioner has made this second attempt seeking bail in connection with FIR No.81/2017 of Police Station Dechu, District Jodhpur Rural, wherein he is charged for offence punishable under Section 8 / 21 of the NDPS Act. Police after investigation submitted charge-sheet in the matter.

(2.) Arguing on this second bail application, it is submitted by learned counsel for the petitioner that after rejection of first bail application as not pressed, there is material change in the circumstances inasmuch as upon completion of investigation, charge-sheet has been filed. Learned counsel has further submitted that a bare perusal of charge-sheet and other allied papers would ipso facto reveal that while issuing notice under Section 50 of the NDPS Act, the SHO concerned has flagrantly violated sub-section (2) of Section 50 of the NDPS Act. Learned counsel has argued that the law envisages giving option to accused for search in presence of a gazetted officer or a magistrate only and no third option is available but the notice envisaged third option also i.e. the SHO concerned. Elaborating his submissions, learned counsel contends that mentioning of third option has, prima facie, vitiated the entire search. In support of his arguments, learned counsel has placed reliance on a decision of Supreme Court in case of State of Rajasthan V/s. Parmanand & Anr. [(2014) 5 SCC 345] and the decision rendered by this Court on 20th of July 2017, while deciding S.B. Cr. Appeal No.284/2017. By canvassing all these material change in the circumstances and the technical infirmities in search and seizure proceedings, learned counsel has urged that petitioner's second bail application merits favourable consideration.

(3.) Per contra, leaned Public Prosecutor has opposed the bail application. It is argued by learned Public Prosecutor that 283.60 gms., contraband (smack) was recovered in the matter, which is above commercial quantity, therefore, rigor of Section 37 of the NDPS Act is attracted.