Mukhtiar Singh vs State of Punjab

Sarojnei Saksena, J.—Relying on Mohinder Kumar v. State of Punjab (1995) 2 RC 599 : AIR 1995 SCW 1208, Ali Mustaffa Abdul Rahman v. State of Kerala 1 (1995) CCR 57 : AIR 1994 SCW 4393 , and Amarjil Singh v. State (Delhi Admn.), 1995 2 RC 578, petitioner''s learned counsel contends that from the first information report it is evident that only co-accused Prem Singh was given an option u/s 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act), which is a mandatory provision, as held in these two Apex Court decisions (Ali Mustaffa and Mohinder Kumar). He further contends that in Amarjit Singh''s case, a Division Bench of Delhi High Court has held that even when search of a vehicle is taken, the provisions of Section 50 of the Act are required to be adhered to.

Respondent''s learned counsel contended that it was a case of chance recovery. Though by way of abundant caution option was given to co-accused Prem Singh, but in the facts of the case it was not necessary to give such an option to the accused persons u/s 50 of the Act.

So far as the facts of Ali Mustaffa''s, AIR 1994 SCW 4393 and Mohinder Kumar''s AIR 1995 SCW 1208 cases are concerned, they are quite distinguishable. In these cases, when the personal search was to be taken, at that juncture, the Apex Court held that the police party was required to follow the provisions of Section 50 of the Act. In this case, it is evident that personal search was not taken. Search of vehicle was taken. No doubt, the Division Bench of Delhi High Court in Amarjit Singh''s case 1995 (2) RC R. 578has taken a view that words ''personal search'' in Section 50 would mean that if accused was in possession of drug may be on his body or may be on a particular vehicle which he is found to be in possession. But the provisions of Section 50 of the Act are quite evident. Section 50 of the Act lays down that when any officer only authorised u/s 42 is about to search any person under the provisions of Section 41, 42 or 43, he shall, if such person so requires, lake such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. Sub-section (2) lays down that if such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1). From a plain perusal of Sub-sections (3) and (4) it is evident that this provision is meant only for personal search of an accused. Sub-section (3) lays down that the Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. Sub-section (4) provides that no female shall be searched by any one excepting a female.

If the intention of the legislature would have been that this provision should be followed even when a vehicle is to be searched, which is alleged to be in possession of the accused, then the phraseology of this section would have been more comprehensive, inclusive of vehicle, conveyance etc. In my considered view, if the accused is in possession of a contraband article, may be on his body, may be in anything which he is carrying on his body, then the provisions of Section 50 are required to be followed, but if the contraband is found in a vehicle which is being driven by an accused or wherein the accused persons are sitting, then the provisions of Section 50 of the Act are not to be adhered to. Further, it is a case of chance recovery. On both these counts, I find that if the provisions of section are not adhered to, that will not entitle the petitioner to be enlarged on bail.

The last contention raised is about the non-observance of the provisions of Section 36A of the Act. A Full Bench of this Court in Criminal Misc. No. 9322-M of (sic) 93 has held that since Special Courts are not constituted in the State of Punjab, the Judicial Magistrate is empowered to grant remand to such an accused. Petitioner''s learned counsel could not satisfy this Court as to how under the provisions of Section 37 of the Act, the petitioner is entitled to bail. Accordingly, the petition is hereby dismissed.