Gurvinder Singh @ Kalu vs State of Punjab

Bakhshish Kaur, J.

Gurvinder Singh alias Kalu was found in possession of 1 kg. of opium, which resulted in the registration of the case under sections 18/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

On July 6, 1999, Bikramjit Singh, S.I. along with Surender Pal Singh, A.S.I. and other officials was present at Bus Stand Tirsaka for conducting raid at hideouts of bad elements. The police party left in a Canter and proceeded towards village Kot Khera (failing in P.S. Metha, district Amritsar). When the police party was at a short distance from the canal minor bridge, in the area of village Kot Khera the petitioner carrying a bag in his right hand was spotted crossing the canal bridge on the canal bank. He was stopped on suspicion. He was apprised to the effect that his search was to be conducted and for that whether he wants to be searched by a gazetted officer or by a Magistrate. The consent memo was prepared. D.S.P. Rachpal Singh was called to the spot and in the meantime Jagir Singh son of Buta Singh resident of village Sedo Lehal was also associated in the police party. D.S.P. Rachpal Singh on his arrival at the spot also informed the petitioner as to whether he wants his search to be conducted by him or any other gazetted officer, upon which he replied that he had full faith in him. As a consequence of the search, 1 kg. of opium wrapped in a glazed paper was recovered. Sample of 20 gms was taken out from the recovered opium and then sample and remaining opium were separately sealed with the seal of SubInspector bearing sealimpression `BS''. The D.S.P. also put his seal bearing seal impression `PSG'' on the sealed parcels. Thereafter, after completion of other formalities, the present case was registered.

I have heard Mr. D.S. Pheruman, the learned counsel for the petitioner and Mr. I.P.S. Sidhu, Assistance AdvocateGeneral, representing the State of Punjab.

Mr. D.S. Pheruman, the learned counsel for the petitioner, mainly contended that the petitioner had not been informed of his legal right of personal search. It is the bounden duty of the empowered officer to conductor the search of the suspected person in accordance with the provisions as envisaged under the provisions of section 50 of the Act; that the suspect has the right to require his search being conducted in the presence of a gazetted officer or a Magistrate and that the failure to do so would render the search illegal, because the petitioner in that case would not be able to avail of the protection which is inbuilt in Section 50 of the Act. To support his argument, he has placed reliance on a reported decision in Saiyad Mohd. Saiyad Umar Saiyed & others v. State of Gujarat, JT 1995(3) SC 489, wherein it is held that it is imperative on the part of the Officer to inform the person to be searched of his right and that cogent evidence has to be produced to show that the said person was made aware of such right or protection and there is no question of drawing presumption under section 114, illustration (e) that the requirements of section 50 of the Act were complied with.

Mr. D.S. Pheruman also placed reliance on the latest authority of the apex Court reported as The State of Punjab v. Baldev Singh, 1999(3) All India Criminal Law Reporter 1, wherein it has been held that unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50 of the Act.

The matter under consideration is whether the empowered officer had apprised the petitioner of his right to require his search being conducted in the presence of a gazetted officer or a Magistrate. In case it is not, then the petitioner would certainly be entitled to bail as it would amount to non compliance of the provision of Section 50 of the Act. From the narration of facts above, it is abundantly clear that S.I. Bikramjit Singh had informed the petitioner whether he wants to be searched from a gazetted officer or from a Magistrate. A consentmemo was prepared as the petitioner wanted his search to be effected by a gazetted office and thereafter D.S.P. Rachpal Singh was called to the spot. Even D.S.P. Rachpal Singh before conducting the search informed the petitioner whether he wanted to be searched by him to which he replied that he had full faith in him and he could conduct his search. Thus, the question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions the Section 50 of the Act, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial.

For the aforesaid reasons, no case is made out for bail. Dismissed. The observations as above be not considered as an expression of opinion on the merits of the case.