Mahi Pal Singh vs Chandigarh Administration, Chandigarh

M.L. Singhal, J.

According to the prosecution, on 13.8.1997 S.I. Bhupinder Singh was present in Sector 24, alongwith other police officials. One Suresh Kumar met the police party and in the meantime secret information was received that Mahipal Singh petitioner herein was supplying poppy husk in the City and he had come from Rajasthan to Chandigarh with heavy quantity of poppy husk in his possession and if Naka was laid he could be apprehended with poppy husk in his possession during the course of said Naka. S.I. Bhupinder Singh accordingly laid Naka. After some time Mahipal Singh came on scooter from the direction of Batra Cinema with a kitbag of heavy weight. He was stopped. That kitbag was containing poppy husk weighing 25 kgs.

This is Criminal Misc. No. 25642M of 1997 filed by Mahipal Singh whereby he has prayed to this Court for the grant of bail to him. In this case, F.I.R. No. 180 dated 13.8.1997, registered under Section 15 of N.D.P.S. Act at Police Station 39, Chandigarh. It has been submitted that in the F.I.R. there is no mention that the petitioner was informed of his right that if he wanted, that kitbag could be searched in the presence of some Gazetted Officer or a Magistrate. According to the prosecution, Mahipal Singh stated that he would like to be searched before the Gazetted Officer. Wireless message was flashed and on receiving the wireless message, Mr. Daya Nand D.S.P. alongwith his gunman came there. In his presence, the said recovery took place. It has been submitted by the learned counsel for the petitioner that there has not been compliance of Section 50 of the said Act in its letter and spirit. Mahipal Singh should have been told in a forthright manner that he could be searched in the presence of some Gazetted Officer or a Magistrate. Sending for D.S.P. Daya Nand, it has been submitted by the learned counsel for the petitioner, was not in consonance with the intention of the Parliament while inserting Section 50 in the Act. When the Legislature intends that a particular thing should be done in that manner, that thing should be done only in that manner and in no other manner. It has been submitted that if Mahipal Singh had been told that Magistrate could also be called in, he might have flung in and said that "call some Magistrate". If some Magistrate had been called that would have lent greater assurance and authenticity to the factum of the alleged recovery of 25 Kgs. of poppy husk from the possession of the accused.

In my opinion, it is quite debatable whether there has been compliance of the provisions of Section 50 of the said Act or not as per the true intention of the Parliament which runs through the various provisions of the Act which aim at obviating false implication. As far as possible, recovery should have been got witnessed by some Gazetted Officer or some Magistrate, and not by police officers alone who are usually interested in the success of the case detected by them to win applause from their superiors.

For the reasons given above, bail to the satisfaction of Chief Judicial Magistrate/Duty Magistrate, Chandigarh.