1 S.B. CRIMINAL MISC. BAIL APPLICATION NO.5061/2010 (Sahdev Vs. State) Date of Order : 11.08.2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. R.S. Gill, for the applicant. Mr. MP Bishnoi, Public Prosecutor. Heard learned counsel for the applicant as well as learned Public Prosecutor and perused the case-diary. It is contended by learned counsel for the applicant that though three kilogram opium was recovered from the applicant but it has been recovered by Sub-Inspector who was not posted as SHO of the concerned Police Station. Therefore, in view of the judgments of this Court and Hon'ble Supreme Court, the applicant is entitled to be released on bail because the person who recovered and seized the contraband article was not competent authority. He has invited the attention of this Court towards the judgments reported in 2004 (1) Cr.L.R. (Raj.) 612, 2008 (1) Cr.L.R. (Raj.) 833 and 2000 AIR SCW 4005 and submitted that in all the above judgments, it has been held by Coordinate Bench of this Court as well as by Hon'ble Supreme Court that if any accused is arrested and commodity is seized by incompetent authority then he cannot be convicted for 2 committing offence under N.D.P.S. Act. In this case, the applicant is in judicial custody and still challan has not been filed by the Police and investigation is going on. I have perused the judgments cited by learned counsel for the applicant. In all the judgments cited by learned counsel for the applicant, the argument with regard of seizing of contraband article by the incompetent authority was considered by Coordinate Bench of this Court as well as by Hon'ble Supreme Court at the stage of appeal and not at the stage of investigation. In my opinion, whether the police officer who has seized the contraband article was incompetent or not is subject matter of investigation and trial. In this view of the matter and fact that commercial quantity of opium has been recovered, I am not inclined to grant bail to the accused applicant because admittedly the contraband article was recovered from the conscious possession of the applicant. Hence, this bail application moved under Section 439 Cr.P.C. on behalf of accused applicant Sahdev is hereby rejected. (GOPAL KRISHAN VYAS), J arun