Ajay Kumar vs State of Punjab

M.L. Singhal, J.—Heard.

According to the prosecution, opium weighing 1? Kgs. was recovered from the possession of the Petitioner on 7th May, 1998. Learned Counsel for the Petitioner submits that according to the prosecution, recovery was witnessed by one Nahar Singh, son of Inder Singh. Seal after use was, however, handed over to H.C. Jaspal Singh. He submits that if Nahar Singh, son of Inder Singh had been present at the spot and witnessed the recovery, seal after use in all probability would have been handed over to him. He further submits that the offer given to the accused which reads as follows �Tu aapne bag di talashi wade police officer jaan kise Magistrate sahib paaso karauni chahunda hai tan kara sakda haijisne kiha ki main kise wade police officer paaso talashi karauni hai� does not conduce to the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 50 of the said Act lays down as follows :

Conditions under which search of persons shall be conducted.--(1) When any officer duly authorised u/s 42 is about to search any person under the provisions of Section 41,� Section 42 or Section 43, he shall, if such person so requires take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought, shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

Learned Counsel for the Petitioner submits that the offer made should� have been straight conducing to the provisions of Section 50. He submits that if the accused had been told that if he wanted, his search could be effected in the presence of a Magistrate or Gazetted Officer, the accused would have opted in favour of a Magistrate or a Gazetted Officer of some other department. He submits that the provisions of Section 50 are mandatory and if the offer made is not conducing to the provisions of Section 50, the very recovery will fall to the ground. He further submits that if the Legislature intends that a particular thing should be done in a particular manner, the intention of the Legislature is that it should be done in that manner and in no other manner and, therefore, A.S.I. Gurcharan Singh should have carried out the mandate of Section 50 in its letter and spirit quite faithfully. He further submits that it is difficult to say what was in the mind of A.S.I. Gurcharan Singh when he told the accused that he could be taken to a big police officer or some Magistrate for search. What the accused meant when he allegedly answered that he should be taken to a big police officer, what that police officer should be. In support of this submission that such an offer is violative of Section 50 of the said Act, learned Counsel drew my attention to Dalbir Singh v. State of Punjab 1998 (1) RCR 671 , where the offer was that if he desired, he could be taken to a big officer for search. Without considering the worth of these submissions, lest it should prejudice the case of either party on merit. I think it is a case where bail should be allowed. So, bail to the Petitioner to the satisfaction of Chief Judicial Magistrate Patiala.