ORDER : FARJAND ALI, J. 1. The jurisdiction of this court has been invoked by way of filing an 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 162/2022 2. Concerned Police Station Gangrar 3. District Chitorgarh 4. Offences alleged in the FIR Section 8/15 NDPS Act 5. Offences added, if any Section 8/29 of the NDPS Act 6. Date of passing of impugned order 04.11.2023 2. The petitioner is behind the bars since 17.07.2022. Counsel for the petitioner has submitted certified copies of the order sheets of the trial Court which is reflecting non-appearance of the prosecution witnesses. An ordersheet dated 29.08.2024 revealing recording of three witnesses out of total 19 witnesses and whereafter, no witness has been examined till date. His first bail application being SBCRLMB No.3579/2024 decided on 01.04.2024 was dismissed as not pressed but a liberty was given to the petitioner to renew the prayer for bail after recording the statement of Seizing Officer. Now, he has been examined as P.W. 2 in the trial, hence, the instant bail application. 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 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. 4. 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. 5. I have heard and considered the submissions made by both the parties and have perused the material available on record. 6. Perusal of the record revealing that admittedly, the seizure of the contraband in this case recovery was effected by Laxmi Lal, Sub-Inspector who intercepted a vehicle made search and seized material and arrested the accused he is examined as P.W.2 in trial. There is no evidence for the nameshake on record to show that he was deployed in the Police Station in the capacity of “Station House Officer”. He has been examined as PW-2 in the trial. There is no evidence for the nameshake on record to show that he was deployed in the Police Station in the capacity of “Station House Officer”. He has been examined as PW-2 in the trial. At Page No.4 of his testimony, he candidly admitted that at the relevant point of time one Shivlal Meena was the SHO of the Police Station Gangrar. Indisputably the search and seizure was made after the sunset but no warrant was obtained for making search in the night. At page No.4 of his statement he admits that there was no memo in accordance with Gazeete Notification No.1/1986 a per which, only those Sub-Inspectors are authorised to effect search and seizure who are posted as SHO. There is nothing on record from which it can be inferred that he was having charge of Police Station for a limited period as “Station House Officer”. As per S.O. 1986, only those Sub-Inspectors are authorised to effect search and seizure of contraband who are working as a posted ”SHO”. 7. Sections 41 & 42 of NDPS Act has been reproduced under for reference: 41. As per S.O. 1986, only those Sub-Inspectors are authorised to effect search and seizure of contraband who are working as a posted ”SHO”. 7. Sections 41 & 42 of NDPS Act has been reproduced under for reference: 41. Power to issue warrant and authorisation.—(l) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe 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: (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer 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 in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence 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 place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub- section (2) shall have all the powers of an officer acting under section 42. Section 42 in The Narcotic Drugs And Psychotropic Substances Act, 1985 42. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub- section (2) shall have all the powers of an officer acting under section 42. Section 42 in The Narcotic Drugs And Psychotropic Substances Act, 1985 42. Power of entry, search, seizure and arrest without warrant or authorisation.— (l) 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 para-military 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 anytime 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. 8. A bare perusal of the aforementioned provision revealing that an officer authorised under this section can instruct his subordinate to act and to make search and seizure. Admittedly the SHO who instructed the ASI to conduct search and seizure was not an officer who is authorised under Section 41 of NDPS Act. 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. 9. No where under Section 41 and Section 42 as well as the S.O. 115 dated 16-10-86, it is rendered that the posted SHO can instruct any other officer to conduct search and seizure on his behalf. So, this case would not fall within Section 41 and Section 42 of the NDPS Act. Patently the search and seizure, in the present matter was not conducted by an authorised person as the seizing officer was neither posted as SHO at the Police Station nor was a person to whom charge was handed over by appropriate authority. The plea that the SI had been given the charge by the SHO is not tenable because there is no entry in any document with regard to this effect. It is not comprehensible as to under what authority the SHO can issue such instructions to an officer who is not authorised to conduct seizure and recovery. 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 and to cover up such circumstances only. It is not comprehensible as to under what authority the SHO can issue such instructions to an officer who is not authorised to conduct seizure and recovery. 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 and to cover up such circumstances only. In light of the S.O. No.1/1986 the sub-inspector who are posted as SHO at certain police stations have authorization to make search and seizure but obviously with the specific stipulation that he should be posted as SHO. Here, in the present matter, the same has not been done as the Seizing Officer who was sub-inspector, was not posted as the SHO. 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 brutal 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. In the case of Roy V.D. (Supra) in Para No.18 of it’s judgment, Hon’ble the Supreme Court has even went to this extent that seizure by an authorised person cannot be quashed by the High Court by exercising its power under Section 482 Cr.P.C. Here in this case at hand, only the question with regard to bail only. Thereto of a person, who is behind the bars for last more than two years. This Court feels that at least bail should be granted to him leaving finding open with the trial Court on the question of authorisation of seizure. 11. A coordinate bench of this court passed a judgment dated 09.04.2004 in S.B. Criminal Appeal No. 659 of 2002 titled Bherulal Vs. State of Rajasthan wherein it was held as under:- 9. The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. State of Rajasthan wherein it was held as under:- 9. The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. 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. 12. This Court is cognizant of the provisions contained in Section 37 of the NDPS Act but considering the submissions made by learned counsel for the accused-petitioner regarding non- compliance of statutory procedure, this court is of the opinion that it is a fit case for grant of bail to the accused petitioner. 13. The purpose of keeping any person behind the bars during trial is not more than to ensure a smooth, fair and speedy trial as well as to see that the accused may not hamper the prosecution witnesses or may not flee from justice. The sentence would run after passing of the judgment of conviction and hearing on the point of sentence. The main purpose is only to see that the accused would have to appear before the Court during the course of trial and at the time of his conviction so that he may receive the sentence as may be inflicted upon him. No apprehension has been shown by the Public Prosecutor that if the petitioner is released on bail he will flee from justice and will not be available for trial. Needless to say, none of the observations made herein under shall affect the rights of either of the parties during trial and this Court refrains from commenting on the niceties of the matter. 14. Needless to say, none of the observations made herein under shall affect the rights of either of the parties during trial and this Court refrains from commenting on the niceties of the matter. 14. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title 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.