Gyasuddin vs State of U.P.

S.R. Singh, J.—This application for bail u/s 439, Code of Criminal Procedure arises out of Case Crime No. 129 of 1996 u/s 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short'' the Act'') registered at police station G.R.P./Pravartan Dal Abkari Vibhag, District Gorakhpur. Recovery memo shows that the applicant was standing near ''SIDHIWALA PUL'' with a bag at railway platform No. 1, G.R.P., Gorakhpur on 23.5.1996 at 9.30 p.m. He was apprehended and, on search, found in possession of 10.500 Kg. of charas contained in the bag but failed to produce any valid authority for possession thereof.

Sri Wasim Alam, learned Counsel appearing for the applicant pressed for bail on the ground that search, seizure and arrest were made in violation of the provisions of Section 50 of the Act. The learned Counsel urged that the applicant had statutory right of being searched in presence of a Gazetted Officer or Magistrate, but the applicant was not taken to a Magistrate for search even though it was so desired by him in answer to the question whether he wanted to be searched in presence of Gazetted Officer or Magistrate. Learned Counsel for the applicant placed reliance on a single Judge decision of this Court in Munna v. State of U.P. 1996 UPCrR 585. Sri Sudhir Mehrotra, learned Additional Government Advocate refuted the submissions made by the learned Counsel for the applicant and urged that the search was made in the presence of a Gazetted Officer of one of the departments mentioned in Section 42 of the Act and, therefore, it was not necessary for the officer conducting the search to take the applicant to a Magistrate. Learned Additional Government Advocate placed reliance upon the latest Supreme Court decision in Raghubir Singh v. State of Haryana 1996 SCC 266.

Having heard counsel for the parties and having given my anxious consideration to the submissions aforementioned, I am of the view that the search in the instant case has not been made in violation of Section 50 of the Act. The option available to the suspect is to choose between the officer concerned and a Gazetted Officer or Magistrate for the purpose of search and seizure. The suspect has no right, u/s 50 of the Act, to make a choice between the Gazetted Officer and the Magistrate. That right appears to be with the officer apprehending the suspect as is evident from the expression "take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 of the Act or to the nearest Magistrate" used in Section 50. The search made in presence of the Gazetted Officer of any of the departments mentioned in Section 42 of the Act would not be vitiated merely because it was not made before a Magistrate as desired by the suspect/accused for no such right is conferred upon the suspect/accused u/s 50 of the Act.

In Manohar Lal Vs. State of Rajasthan, , the Supreme Court has held as under:

The provision only requires the option to be given to the accused to say whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate; and on exercise of that option by the accused, it is for the officer concerned to have the search made in presence of the nearest Gazetted Officer or the nearest Magistrate whosoever is conveniently available for the purpose in order to avoid undue delay in completion of that exercise. It is clear from Section 50 of the N.D.P.S. Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer taking the search or In the presence of the nearest available Gazetted Officer or the nearest available Magistrate. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused.

The aforesaid view expressed in Manohar Lal (supra) was affirmed by the Supreme Court in Raghubir Singh v. State of Haryana (supra) wherein it was ruled as under:

The option u/s 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. The use of the word ''nearest'' in Section 50 is relevant The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whosoever is the most conveniently available, Gazetted Officer or Magistrate.

The contrary view taken in Munna v. State of U.P. (supra); Manak Chand Jain Vs. State, (Delhi High Court); Laxman Jena v. State of Orissa 1995 CriLJ 2993 (Orissa High Court); Criminal Misc. Case No. 3196 (b) of 1995 Prabhat Kumar v. State, decided on 1.11.1995; Writ Petition No. 225 (H/C) of 1995 Parasu Ram Verma v. State of U.P. and Ors. decided by a Division Bench of this Court on 8.11.1995 does not hold the filed in view of the Supreme Court decision aforementioned.

The observation : "if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate" made by the Supreme Court in State of Punjab v. Balbir Singh (1995) 3 SCC 299 and the observation : "the accused is authorised to require the search for possession to be conducted in the presence of a Gazetted Officer or a Magistrate" made by the Supreme Court is Saiyad Mohd. Saiyad Umar Saiyad and Others Vs. State of Gujarat, are not intended to lay down the proposition that the accused has the right u/s 50 of the Act to say that his search be made before the Gazetted Officer and not before the Magistrate or vice versa irrespective of the availability of such Gazetted Officer or Magistrate. The contrary view taken by Delhi High Court, Orissa High Court and this High Court in the aforementioned cases stand impliedly overruled in view of the decision of the Apex Court in Manohar Lal v. State of Rajasthan and Raghubir Singh v. State of Haryana (supra).

That apart in Criminal Misc. Bad Application No. 12660 of 1996 Zakir Hussain, v. State of U.P., decided on 10.3.1997, it has been held that the violation of the mandatory provisions regarding search and seizure may be taken into account along with other materials including the recovery memo/panchnama, the time when search is made, the place where the contraband is seized and the quantity of the contraband for the purpose of deciding as to whether there are reasonable ground for believing whether the accused is guilty of the offence and whether he is likely to commit any offence while on ball as visualised by subclause (ii) of Clause (b) of Section 37(1) of the Act.

Having regard to the huge quantity of charas recovered from the applicant in presence of a Gazetted Officer of one of the departments mentioned in Section 42 of the Act. I am of the considered view that the applicant has not been able to lift the embargo placed on the power of the court to grant bail by Section 37 of the Act.

Accordingly the ball application fails and is rejected at this stage.