Mohinder Singh vs State of Haryana

R.L. Anand, J.—This appeal succeeds on a short ground that the search which has been offered to the accused by the Investigating Officer was partial and does not conform with the mandatory provisions of Section 50 of the N D.P.S. Act. For the gravity of facts. I may mention that Appellant Sh. Mohinder Singh, son of Dhara Singh was convicted for the offence u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced to undergo R1 for a period of 10 years and to pay fine of Rs. 1 Lac. In default of payment of fine Appellant was directed to undergo Rl for a period of one year for having been found in possession of 2 kgs. of poppy husk on 12.7.1995 in the area of village Titram without any permit or licence.

When the Appellant was apprehended on the basis of suspicion, he was specifically informed by the Investigating Officer that the. bag of the Appellant, kept on the back side of the motor cycle contains some narcotic drugs. The alleged compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act. 1985 was done in the following manner vide notice Ex. PC. The Appellant was enquired as to whether he wanted to give the search of the bag in the presence of a Gazetted Officer or in his presence. Upon this, the Appellant deposed and stated before the Investigating Officer that he may call any Gazetted Officer in this regard. The short and legal point arises in these circumstances whether the compliance as mentioned in Ex. PC which is being repeated again by the Investigating Officer in the Court, while appearing as P.W.-5 is the enough compliance for the purpose of Section 50 of the N.D.P.S. Act or not?

When a Legislature desires that the particular act should be done in a particular manner, it must be done in that very manner and not in any other manner. A close reading of Section 50 of the Act would show that it is obligatory on the part of the Investigating Officer to produce before the (sic) person to be searched. It is the right of the person to be searched to make a request to the Investigating Officer that he wanted the search in one of the recognise modes as envisaged u/s 50 of the Act. Here is a case where the Investigating Officer did not apprise the Appellant that he had the right to be searched in the presence of a Magistrate. In these circumstances, the Appellant was only confined to make a request to the Investigating Officer that some Gazetted Officer may be called.

The learned DAG appearing on behalf of the State has relied upon a Division Bench judgment of this Court in Raj Kumar v. State of Haryana 1997 (2) RCR 798 (P & H), and my attention was drawn to para 19 of the said judgment. I have gone through the citation. This judgments relied upon a judgment of the Supreme Court in Manohar Lal v. State of Rajasthan. 1961 (1) RCR 660 (SC). A study of this judgment would show that this judgment has been given under different facts. Here in the cited case, the option which was given to the accused to the effect whether he wanted to give the search in the presence of some senior officer. The accused gave consent to that effect. In that context, the Hon�ble Judge was pleased to say that once the accused had given the consent to be searched in the presence of senior officer, then he cannot say that he must be searched by the Magistrate or by a Gazetted Officer. Upon this, it lies with the Investigating Officer to call any of the officers, i.e., the Magistrate or Gazetted Officer. Here is a case where the option was completely partial and the effect is that partial offer is no offer in the eyes of law and does not conform with the provisions of Section 50 of the N.D.P.S. Act as a result of which recovery of the contraband stands vitiated.

Resultantly, I accept this appeal, set aside the judgment and order of the learned trial Court and acquit the Appellant of the charge framed against him. Intimation about the acceptance of this appeal be sent to the Superintendent, District Jail, Ambala, who is directed to release the Appellant forthwith if not convicted or wanted in any other case. Case property stands confiscated to the State. Accused stands discharged from the bail bonds.