Order : (FARJAND ALI, J.) 1. The jurisdiction of this court has been invoked by way of filing the instant second bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below : S.No. Particulars of the Case 1. FIR Number 437/2023 2. Concerned Police Station Pilibanga 3. District Hanumangarh 4. Offences alleged in the FIR Section 8/15 & 25 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned order 03.02.2024 2. The first bail application being SBCRLMB No.2240/2024 was dismissed as not pressed by this Court vide order dated 16.05.2024 but a liberty was afforded to the petitioner to renew the prayer for bail after recording the statement of Seizure Officer. Now, She has been examined in the trial as P.W. 2. Hence, the instant bail application. 3. Brief Facts of the case are that on 24.06.2023 at approximately 7:40 p.m. at the non-inhabited colony Laxmi Plaza Rohi Dulmana, on the road from Pilibanga to Hanumangarh, Ms.Rajandeep Kaur, Sub-Inspector, Acting SHO, Police Station Pilibanga intercepted a Truck No.RJ19 GG-1335 and recovered 215 kg of poppy husk from 10 black plastic bags, each containing 20 kg. and 1 light sky blue plastic bag containing 15 kg. The accused were identified as Poonamram and Bhupendra alias Boota, who were jointly traveling in the truck. After seizure, the accused were arrested and an FIR No. 437/2023 got registered under Sections 8/15 and 25 of the NDPS Act at Police Station Pilibanga. 4. 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 no factors at play in the case at hand that may work against grant of bail to the accused- petitioner and he has been made an accused based on conjectures and surmises. He further submits that the accused was taken into custody on 24.06.2023 and since then he is behind the bars. Now, more than one year has been elapsed but the trial is not going to be culminated and still it seems that further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail. 5. Now, more than one year has been elapsed but the trial is not going to be culminated and still it seems that further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail. 5. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail. 6. I have heard and considered the submissions advanced by both the parties and have perused the material available on record. 7. The specific plea has been taken regarding non-compliance of Section 42 of the NPDS Act which is a mandatory provision in nature. Admittedly the Sub-Inspector Ms. Rajandeep conducted search and seizure in the matter was not a posted SHO rather at the relevant point of time Vijay Meena, Sub-Inspector was posted at the Police Station Pilibanga. In the entire file not a single paper is there in record to establish the fact that Ms. Rajandeep was posted as SHO of the Police Station Pilibanga. The law in this regard is no more res-integra that only those Sub-Inspectors are authorised to conduct search and seizure under the NDPS Act who are posted as SHO of the Police Station. The Standing Order of 1986 is very much clear on this aspect. In an identical matter Satya Narayan @ Sattu Vs. State of Rajasthan , this Court vide order dated 09.11.2023 passed in SBCRLMB No.3678/2023, this Court has observed that only the posted SHO is authorised to conduct search and seizure. The relevant paras of the said order is being reproduced as under:- 5. Heard and perused the material available on record. It is the case of defence that the Seizing Officer was neither posted as SHO nor any charge of the concerned Police Station was given to him. PW.1 Lakshmilal, the Sub-Inspector who conducted the search and seizure has been examined in the trial and he has categorically stated in cross-examination that one Shivraj was the SHO posted at the concerned police station. He has further admitted that there is nothing in writing, neither on record nor in the Roznamcha, which can prove the fact that the SHO handed over the charge of the police station to him. Now, this court deems it appropriate to discuss the law prevalent in the matter. 6. He has further admitted that there is nothing in writing, neither on record nor in the Roznamcha, which can prove the fact that the SHO handed over the charge of the police station to him. Now, this court deems it appropriate to discuss the law prevalent in the matter. 6. The NDPS Act is a statute comprising of stringent provisions which need to be followed in letter and in spirit and non-compliance of any stipulations specially the ones relating to the procedure followed during search, seizure and arrest, cannot be overlooked. 7. 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. 8. 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. 9. 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. 9. 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 are a concerned such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspectors or S.H.O. of the Police Station concerned. 10. Hon’ble the Supreme Court passed a landmark judgment in the case of Roy V.D. Vs. State of Kerala reported in AIR 2001 SC 137 wherein, in a similar situation, it was observed as under:- 16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the Narcotic Drugs & Psychotropic Substances Act or make a complaint under Clause (d) of Sub-section (1) of Section 36A of the Narcotic Drugs & Psychotropic Substances Act. If follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the Narcotic Drugs & Psychotropic Substances Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the Narcotic Drugs &Psychotropic Substances Act and use of such a material by the prosecution vitiates the trial. 18. It is well settled that the power under Section 482 of the Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. 18. It is well settled that the power under Section 482 of the Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence bases on such material butal so the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 of the Cr. P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice. 11. In light of the judgments cited above, the notification passed by the State government in this regard as well as the provision contained in Section 42 of the NDPS Act, this Court is of the view that the non-compliance of mandatory provisions of the NDPS Act has to be dealt with a strict hand and it is imperative upon the courts to be cautious while adjudicating such matters where seizure is concerned under the NDPS Act as no accused should be able to walk scot-free for want of proper implementation and following of the procedure established by law. 8. The facts appearing in this case making it abundantly clear that as per the mandate of law the Seizing Officer Sub-Inspector Ms. Rajandeep was not authorised to conduct search and seizure and as such, any recovery made by an unauthorised officer cannot be countenanced. Where a power is given to do a certain things in a certain way, the thing must be done in that way or not at all; and that all other methods of performance are necessarily forbidden. Affecting search and seizure by an authorised officer vitiates the recovery of contraband and now a question would arise whether w an accused can be kept detained for an indefinite period for the charge; the foundation of which is laid in direct contrast to the mandatory legal provision. Affecting search and seizure by an authorised officer vitiates the recovery of contraband and now a question would arise whether w an accused can be kept detained for an indefinite period for the charge; the foundation of which is laid in direct contrast to the mandatory legal provision. Besides the above, mandatory provisions have not been complied and here is a case of bail only in which an accused is incarcerated for a long time. On this count alone, when the judicial proceeding can be quashed then in my view, there should be no bar in granting bail to the accused. 9. In light of the judgmentcited above, the notification passed by the State government in this regard as well as the provision contained in Section 42 of the NDPS Act, this Court is of the view that the non-compliance of mandatory provisions of the NDPS Act has to be dealt with a strict hand and it is imperative upon the courts to be cautious while adjudicating such matters where seizure is concerned under the NDPS Act as no accused should be able to walk scot-free for want of proper implementation and following of the procedure established by law. 10. Considering the overall facts and circumstances and the fact that till date out of total 16 witnesses, statements of only two prosecution witnesses have been recorded in the trial. Of course, there is a fetter under Section 37 of the NDPS Act regarding grant of bail to an accused having illegal possession of commercial quantity of contraband but a fundamental right of speedy trial to him cannot be permitted to be flouted. When there appears conflict between the statutory provision and the fundamental right then this Court is of the view that a protection of fundamental right should be given preference over the statutory bar in granting bail. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. 11. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. 11. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.