Lakhwinder Singh alias Dogar vs State of Punjab

Bakhshish Kaur, J.

Lakhwinder Singh alias Dogar was apprehended for the possession of nine bags of poppy husk, out of which eight bags were found to contain 35 kgs of poppy husk each, whereas 9th bag contained 17 kgs of poppy husk. Therefore, by way of filing this petition, the petitioner seeks bail.

On March 25, 1999, Inspector Devinder Singh along with other police officials was patrolling the area and checking the suspected persons on the link road of Dhanstha to village Asmanpur. On reaching the canal minor bridge of village Asmanpur towards village Jorhi Sahib, Lakhwinder Singh alias Dogar was spotted sitting on the gunny bags. On seeing the police party, he tried to slip away, but he was apprehended. The Inspector informed him that it was suspected that some incriminating article was contained in the gunny bags. These are required to be searched. In case he so desires, the search can be searched (conducted ?) in the presence of a gazetted Officer. The petitioner opted that it may be conducted by a gazetted Officer. Consequently, his consentmemo was prepared and the gazetted offer i.e. D.S.P. of Circle Samana reached the spot. An independent witness, namely Pala Ram son of Chanan Ram was also associated in the police party. Thereafter the D.S.P. conducted the search in accordance with the provisions as envisaged under section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The entire poppy husk contained in the bags was put together at one place, out of which two samples of 250 gms. each were separated and rest of the poppy husk was put into nine bags. They were separately sealed with the seal impression `DS''. The recovered articles were taken into possession vide seizurememo prepared at the spot. Further proceedings were taken for the registration of the case.

I have heard Mr. K. S. Dhaliwal, the learned counsel for the petitioner and Mr. I. P. S. Sidhu, A.A.G. Punjab, representing the State.

Mr. K. S. Dhaliwal, the learned counsel for the petitioner has mainly challenged the offer made to the petitioner and the consentmemo. prepared at the spot on the ground that the offer of search is a partial officer. Inspector Devinder Singh, who had allegedly apprehended the petitioner simply informed the petitioner `whether he wants to be searched by him or by some gazetted officer ? that if he owns (opts ?) to be searched by some gazetted officer, a gazetted officer can be called at the spot''. It is thus contended that the petitioner was not informed whether his search could be conducted before a Magistrate as well. Thus, it would amount to noncompliance of the provisions of section 50 of the Act. He has got two legitimate options i.e (i) to be searched in the presence of a Magistrate, or (ii) to be searched in the presence of a gazetted officer, as mentioned in section 42 of the Act. Thus, the fact that the petitioner was not informed of his right to be searched in the presence of the Magistrate, the entire search becomes illegal; therefore the petitioner is entitled to bail on this short ground. To support his argument, he has placed his reliance on the case reported as Jodha Singh v. State of Punjab, 1998(2) RCR(Crl.) 507 : 1998(2) RCC 43.

Mr. I.P.S. Sidhu, the learned Assistant AdvocateGeneral representing the State has strongly opposed the bail application and contended that there is no violation of the provisions as envisaged under the Act. It is a case of huge recovery of four quintets of poppy husk, which could not be easily planted on the petitioner. Secondly, the petitioner was apprised of his right for search before a gazetted officer. Accordingly, gazetted officer was called at the spot, who had conducted his search.

I have considered the rival contentions putforth by the learned counsel for the petitioner and the learned Assistant Advocate General representing the State. In my opinion, the learned counsel for the petitioner cannot derive any benefit from the authority reported in Jodha Singh''s case, 1998(2) RCR (Crl.) 507 (supra), in view of the latest authority of the apex Court reported as The State of Punjab v. Baldev Singh, 1999(3) RCR(Crl) 533 : 1999(3) All India Criminal L.R. 1. It has been observed under para 33, at page 23 that the question whether or not the safeguards provided in Section 50 of the Act 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 of 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 of Section 50, and particularly, the safeguards provided in that Section were complied with, it would not be advisable to cut short a criminal trial.

In the given case in hand, it cannot be said that merely the formalities were observed by the Inspector by apprising the petitioner that his search could be effected before the gazetted officer or a Magistrate, and when the petitioner opted that his search could be effected before a gazetted officer, then the gazetted officer was called at the spot. In that, an independent witness was also associated in the police party before the search was carried out. It is a case of recovery of 40 (three ?) quintals of poppy husk and following the principle laid down in Baldev Singh''s case, 1999(3) RCR (Crl.) 533 (supra) that there is indeed, a need to protect society from criminals, Hon''ble Dr. A.S. Anand, Chief Justice of India, speaking on behalf of the Court observed that the societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist.

Resultantly, the bail to the petitioner is declined as there is no merit in it. Dismissed.

The observations as above be not considered as an expression of opinion on the merits of the case.