JUDGMENT : (Anil Kumar Upman, J.) : 1. The instant third bail application has been filed under Section 439 Cr.P.C. on behalf of the accused-petitioner who is in custody in connection with FIR No.357/2023, Police Station Bhankrota, District Jaipur (West) for offences punishable under Sections 8/21, 8/22 and 8/25 of the NDPS Act. After investigation, police filed charge-sheet before the learned court below. 2. The second bail application preferred by the petitioner was dismissed as withdrawn with liberty to renew the prayer for bail after recording statement of the Seizure Officer. Now, seizure officer has been examined during the course of trial. Thus, this third bail application has been preferred. 3. It is contended by learned counsel for the petitioner that the accused petitioner has falsely been implicated in this case. He contends that petitioner has nothing to do with the alleged recovery of contraband opium. 4. It is also argued by learned counsel that mandatory provisions of Section 42 of the NDPS Act has also not been followed as search and seizure proceedings were conducted in between sunset and sunrise by the seizure officer but no memo of reasons/grounds for conducting search and seizure proceedings during sunset and sunrise, was prepared by the seizure officer. He places reliance upon judgment of Hon’ble Supreme Court in the case of State of Orissa vs. Laxman Jena, reported in (2009) 16 SCC 332 . 5. Learned counsel for the accused petitioner submits that that the accused-petitioner has falsely been implicated in this case and the proceedings have been conducted in violation of the mandatory provisions of the NDPS Act. He draws the Court's attention to the provisions of Section 42 of the NDPS Act and contends that search proceedings were conducted by SI Rajendra Yadav and hence, the search and seizure are in contravention of the provisions. He also contends that only Sub Inspectors and inspectors, posted as Station House Officers, are empowered under Section 42 of the NDPS Act for search and seizure but here in this case, the seizure proceedings were conducted by SI Rajendra Yadav who was not posted as SHO of the Police Station Bhankrota, Jaipur at the relevant time. This fact is evident from the cross-examination conducted from SI Rajendra Yadav, who specifically stated that Sh. Mohan Meena was the SHO at that time. This fact is evident from the cross-examination conducted from SI Rajendra Yadav, who specifically stated that Sh. Mohan Meena was the SHO at that time. This issue was considered by the co-ordinate Bench of this court while deciding S.B. Criminal Misc. Second Bail Application No.7492/2023 (Ashok @ Mulla Ram vs. State of Rajasthan, decided on 19.08.2023) at principal seat and observed as under:- “8. Section 42 of NDPS Act has been reproduced below for ready reference:- 42. Mohan Meena was the SHO at that time. This issue was considered by the co-ordinate Bench of this court while deciding S.B. Criminal Misc. Second Bail Application No.7492/2023 (Ashok @ Mulla Ram vs. State of Rajasthan, decided on 19.08.2023) at principal seat and observed as under:- “8. Section 42 of NDPS Act has been reproduced below for ready reference:- 42. Power of entry, search, seizure and arrest without warrant or authorisation.—(I) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,— (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 9. While enacting Section 42 of NDPS Act, the legislature put a complete ban on authorities beyond the ones mentioned in the Section to carry out the functions under the Act. The legislature has clearly empowered the persons mentioned therein and it has also been specified through the notification No. F. 1(3) FD/EX/85-I, dated 16-10-86 as to who are authorised to do so. 10. Chapter V of the NDPS Act specifically provides that only the officers mentioned and empowered therein can give an authorisation to a subordinate to arrest and search if such officer has reason to believe about the commission of an offence and after reducing the information, if any, into writing. As per Section 42, only officers mentioned therein and so empowered can make the arrest or search as provided if they have reason to believe from personal knowledge or information. The specific rank of the officer and ‘reason to believe’ are two important requirements that are needed to be complied with necessarily. Firstly, the Magistrate or the Officers mentioned therein are empowered and secondly, they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the Act. So far as the first requirement is concerned, it can be seen that the legislature intended that only certain Magistrates and certain Officers of higher rank are empowered and can act to effect the arrest or search. 11. So far as the first requirement is concerned, it can be seen that the legislature intended that only certain Magistrates and certain Officers of higher rank are empowered and can act to effect the arrest or search. 11. The notification No. F. 1(3) FD/EX/85-I, dated 16-10-86, published in Rajasthan Gazette Part IV-C (II) dated 16-10-86 on page 269 reads as:- S.O. 115.-In exercise of the powers conferred by section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No 61 of 1985) the State Government hereby authorise all Inspectors of Police, and Sub-Inspectors of Police, posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act with immediate effect: Provided that, when power is exercised by Police Officer other than Police Inspector of the area concerned such officer shall immediately handover the person arrested and articles seized to the concerned Police Inspectors or S.H.O. of the Police Station concerned. 12. In many scenarios, owing to a very small number or inadequate availability of police inspectors, sub-inspectors have been posted as SHO(s) at several police stations. Taking into account the fact that the sub-inspector is posted as SHO at certain police stations, it is understood that the authorization has been conferred upon the sub-inspector to make search and seizure but obviously with the specific stipulation that he should be posted as SHO. But in the present matter, the same has not been done as the sub-inspector was not posted as the SHO rather the head constable who was actually posted as the SHO by Rajveer Singh had further delegated his charge to the S.I. According to the on-oath statement of PW-3, Rajveer Singh, it is revealed that he had left the police station and given the charge of the police station to head constable Hanuman and the said head constable further gave the charge to sub-inspector Bhanwar Lal. He is also present in person before this court and stands by his statement. It is further deposed therein that Rajveer singh took back the charge of the station from head constable Hanuman which further reflects that Bhanwar Lal did not have any official charge. Except the sworn statement of Bhanwar Lal stating that he was given the charge, there is no other evidence on record to support or verify his contention. It is further deposed therein that Rajveer singh took back the charge of the station from head constable Hanuman which further reflects that Bhanwar Lal did not have any official charge. Except the sworn statement of Bhanwar Lal stating that he was given the charge, there is no other evidence on record to support or verify his contention. For the purpose of satisfaction, this Court had directed the learned Public Prosecutor to procure daily Roznamcha diary of date 10.06.2022 so as to convince this Court with regard to the claim made by the Seizing Officer. Under the direction, the learned Public Prosecutor has submitted requisite Roznamcha for perusal of the Court and he admits that there was no entry in the Roznamcha showing anything regarding the charge of the SHO Rajveer Singh to the Seizing Officer P.W. 1 Bhanwar Lal. No such documents even for the name sake have been produced in trial showing direct entry of the aforesaid fact. 13. The latin maxim ‘delegata potestas non potest delegari’ which provides that once the power that has been delegated cannot be further delegated or in other words, a delegatee cannot further delegate the power delegated to him might operate in the present facts and circumstances of the case though the same remains a matter to be adjudicated after appreciation of evidence during trial.” 6. He also submits that the petitioner is behind the bars since 14.07.2023 but still the case is at the stage of prosecution evidence. The petitioner has also no criminal antecedents. He thus, prays that the instant third bail application may be accepted and the petitioner may be released on bail. 7. Per contra, learned Special Public Prosecutor vehemently opposed the bail application on the ground that recovered contraband comes within the definition of commercial quantity and the petitioner has been apprehended at the spot and thus, considering the embargo contained in Section 37 of the NDPS Act, bail should not be granted. 8. I have considered the arguments advanced by learned counsel for the petitioner as well as learned Public Prosecutor and perused the material available on record. 9. Section 37 of the NDPS Act does not create an absolute embargo for grant of bail. Further, while considering an application for grant of bail, it is not required for the Court to record positive finding that the accused is not guilty. 9. Section 37 of the NDPS Act does not create an absolute embargo for grant of bail. Further, while considering an application for grant of bail, it is not required for the Court to record positive finding that the accused is not guilty. The only requirement of law is that the Court would look at the material in a broad manner and reasonably see whether the accused's guilt may be proved. The satisfaction which courts are expected to record i.e, the accused may not be guilty is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the material collected during investigation. 10. Considering the overall facts and circumstances of the case especially the fact that the petitioner is in custody since 14.07.2023 and till date, the case is at the stage of prosecution evidence; he has no criminal antecedents and also considering the submissions advanced by the counsel for the petitioner referred above but without commenting anything on the merits/demerits of the case, I deem it just and proper to accept the instant bail application. 11. This third bail application is accordingly, allowed and it is directed that accused-petitioner Shiv Gorakh S/o Shri Sitaram Yogi, who has been in custody in connection with FIR No.357/2023, Police Station Bhankrota, District Jaipur (West) shall be released on bail provided he furnishes a personal bond in the sum of Rs.1,00,000/-(Rupees One Lac Only) together with two sureties in the sum of Rs.50,000/-(Rupees Fifty Thousand Only) to the satisfaction of the learned Trial Court with the stipulation that he shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so.