P.K.LOHRA,J. - (1.) Accused-petitioner has laid this second bail application arising out of FIR No.159/2017, registered at Police Station Kapasan, District Chittorgarh for offence under Section 8/15, 25 of the NDPS Act.
(2.) First bail application on behalf of petitioner bearing No.9626/2017 was dismissed as not pressed on 27th of October, 2017 with liberty to file fresh after submission of charge-sheet.
(3.) Arguing on this second bail application, learned counsel for the petitioner submits that now after completion of investigation charge-sheet in the matter has been filed. Learned counsel further submits that the proceedings in connection with search and seizure of the alleged contraband in the matter were undertaken by Sub-Inspector of the concerned police station, who was not S.H.O. of the said police station. It is also submitted by learned counsel that strangely, though the S.H.O. was available at police station yet the search and seizure proceedings were carried out by a Sub-Inspector in clear negation of Section 42 of the NDPS Act and notification issued by State Govt. on 16th of October, 1986. Learned counsel in this connection has cited a decision of this Court in Gopal Gadari v. State of Rajasthan [2017 (3) Cr.L.R. (Raj.) 1581] . Learned counsel further submits that the notice issued under Section 50 to the petitioner is also in gross violation of sub-section (1) of Section 50 of the NDPS Act inasmuch as third option of the In-charge of the concerned police station besides Gazetted Officer and Magistrate was also incorporated in the notice for carrying out search and seizure. In support thereof, learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in State of Rajasthan v. Parmanand and Anr. [(2014) 5 SCC 345] . Lastly, learned counsel for the petitioner has submitted that the contraband poppy straw in the matter was recovered from 18 gunny bags but while preparing samples small quantity was taken from each of the gunny bags and it was mixed to prepare two samples in clear violation of the instructions issued in this behalf. He, therefore, urges that this second bail application merits favourable consideration.;