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Judgment
6 paragraphs · 413 wordsM.L. Singhal, J.
Heard. According to the prosecution when on 8.8.1997 police party headed by ASI Harbans Lal reached near Shivji Mandi in the area of village Hathli Darauli, they came across the petitioner, who was going towards the bus stop of Bhanupali. On seeing the police party he became perplexed and tried to swerve towards pits. ASI Harbans Lal became suspicious about his movements. He intercepted him. He told him that he was suspecting that he was carrying some narcotic with him and that he would subject him to search and if he wanted he could be searched in the presence of some gazetted officer or Magistrate. The petitioner according to the prosecution declined to avail this offer and reposed faith and confidence in ASI Harbans Lal saying that he should go ahead and effect search by himself without taking him to any magistrate or gazetted officer. The search of the accused yielded 130 grams of opium wrapped in plastic paper contained in the internal right side pocket of the pants he was wearing.
According to the prosecution passersby were passing along side them. He requested them to join the recovery proceedings. No body agreed to accede to his request and join the recovery proceedings.
It has been submitted by learned counsel for the petitioner that ASI Harbans Lal did not proceed against any of them which he was empowered to do under the Code of Criminal Procedure. It has been submitted that if ASI Harbans Lal had genuinely wanted the investigation to be fair and just he could have the recovery proceedings witnessed by any of them. In the same strain he has submitted that no offer as aforesaid was really made to the petitioner and that he fabricated his statement to show that he has complied with the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the compliance of which is mandatory and the non compliance of which will impinge upon the genuineness of the recovery.
In my opinion, it is serious question which will be determined at the trial whether there has been or there has not been compliance of the provisions of Section 50 of the said Act. If that be so, accused may not have committed the offence.
Keeping in view the aforesaid facts and circumstances of the case, bail is allowed to the petitioner which shall be subject to the satisfaction of Chief Judicial Magistrate/Duty Magistrate, Rupnagar.