P.K. Lohra, J. - (1.) Accused-petitioner has laid this second bail application under Section 439 Cr.P.C. arising out of FIR No. 172/2017, registered at Police Station Nimbahera Sadar, District Chittorgarh wherein he is charged for offence punishable under Section 8/15 of the NDPS Act.
(2.) After his arrest, earlier, petitioner made an endeavor for seeking bail before this Court by laying S.B. Criminal Bail Application No. 6292/2017 but the same was dismissed as not pressed on 19th of July, 2017.
(3.) Arguing on this second bail application, it is submitted by learned counsel for the petitioner that now there is material change in the circumstances inasmuch as after completion of investigation charge-sheet in the matter has been filed. Learned counsel has further argued that search and seizure of contraband allegedly recovered from the vehicle in question is carried out by Sub-Inspector In-charge of the concerned Police Station, who was admittedly not S.H.O. on the relevant date, and therefore, the same was carried out in violation of Section 42 of the NDPS Act as well as notification issued by State Government on 16th October, 1986. In support thereof, learned counsel has placed reliance on a judgment of this Court in Gopal Gadari v. State of Rajasthan [2017 (3) Cr.L.R. (Raj.) 1581] . It is also argued by learned counsel that the notice issued by Recovery Officer under Section 50 of the NDPS Act is ex facie infirm inasmuch as no option was given to the petitioner for permitting search and seizure either in presence of Gazetted Officer or a Magistrate and on the contrary from the language employed therein it is clearly discernible that the Recovery Officer has solicited opinion of the petitioner in this behalf. Learned counsel further submits that though contraband recovered in the matter is umpteen times higher than the commercial quantity but looking to the serious infirmity in search and seizure and the fact that investigation has been completed, besides a very vital fact that petitioner is in custody since 29th of May, 2017, he may be enlarged on bail.;