Phinder vs State of UT, Chandigarh

M.L. Singhal, J.

This is Criminal Misc. No. 2130M of 1999 whereby one Phinder, petitioner herein, has prayed for the grant of bail to him in case FIR No. 202 dated 23.11.1998 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) of PS West, Chandigarh.

The prosecution case in brief is that on 23.11.1998, SI Sukhbir Singh of CIAI Chandigarh was present near the cremation ground along with SI Tarsem Singh etc. in connection with the investigation of case FIR No. 198 dated 23.11.1998 under Section 400/402 Indian Penal Code of PS West, Chandigarh. SI Tarsem Singh handed over Phinder accused to SI Sukhbir Singh who interrogated him. As a result of interrogation, he suffered disclosure statement that he had kept concealed in front room of his residential house some charas and that he could get charas recovered. SI Sukhbir Singh asked the accused if he wanted the search of his house to be effected in the presence of a gazetted officer or a Magistrate. Phinder replied that his house be searched in the presence of a gazetted officer. Thereupon, SI Sukhbir Singh sent information in writing to DSP(D) who was present in Jhuggi No. 71A, Sector 25, Chandigarh. SI Sukhbir Singh reached house No. 2302 Sector 24, Chandigarh along with constable Vinod Chander where Babu Ram son of Sardara Ram came per chance. He was also joined. At about 12.45 PM, DSP(D) along with constable Vinod Chander reached there. SI Sukhbir Singh produced Phinder accused before DSP(D). DSP(D) interrogated him and told him that he was posted as DSP(D) at Chandigarh and was a gazetted officer and that the place where he had kept charas was to be searched and whether he had any objection to search being effected in his presence. Thereupon, Phinder replied that he had no objection to search being effected in his presence. As a result of the search of the residential house of the accused, charas weighing 400 grams was recovered wrapped in a glazed envelope lying in the front of his house.

Learned Counsel for the petitioner submitted that the search was not witnessed by any witness from the locality. SI Sukhbir Singh called Babu Ram who was a convenient witness. It was further submitted that SI Sukhbir Singh should have effected search in the presence of a Magistrate or a gazetted officer of some other department to lend assurance to the search. It was submitted that there cannot be any assurance to the genuineness of search when the same was allegedly witnessed by SI Sukhbir Singh, DSP(D) and Babu Ram who was resident of a distant locality. It was further submitted that the charas was foisted upon the accused who was lying arrested along with coaccused Jasbir Singh and O.P. Saini in case FIR No. 198 dated 23.11.1998 under Sections 400/402 IPC of PS West, Chandigarh. It was further submitted that how could DSP Daya Nand be present at the spot when he was allegedly simultaneously present in connection with the investigation of case FIR No. 203 dated 23.11.1998 under section 20 of the Act registered against O.P. Saini who was arrested at 14.05 hours. It was further submitted that the house of recovery is not possessed by Phinder accused alone but is possessed by his father, mother, brother etc. and he is not residing in the house of recovery and he does not figure on the ration card relating to the house of the recovery. He drew my attention to ration card Annexure P1.

Learned Counsel for the petitioner drew my attention to Kulwant Singh v. State of Punjab, 1998(1) RCR 847 where it was held that the provisions of Section 50 of the Act cannot be said to have been complied with when the DSP fails to tell the accused that he had a right to be searched before gazetted officer or a Magistrate. He also drew my attention to Mahipal Singh v. Chandigarh Administration, 1998(1) RCR 519 where it was held that the accused has to be told in a forthright manner that he had a right to be searched in the presence of a gazetted officer or a Magistrate. It was further submitted that the recovery taking place in pursuance of a disclosure statement is not admissible. In support of this submission, he drew my attention to Sarabjit Singh alias Sarba v. State of Punjab, 1998(1) RCR 348 .

It was submitted that these are points which require consideration at the trial. If the house of recovery is not found to be possessed of the accused or if the house of recovery is found to be jointly possessed by other adult males along with the accused the accused may not be clothed with being in exclusive possession of that charas. As to whether disclosure statement said to have been suffered by the accused before SI Sukhbir Singh etc. police officials alone was or was not authentic is also to be adjudicated at the trial.

Without stretching these submissions further, I feel bail should be allowed to the petitioner. So, bail to the petitioner to the satisfaction of Chief Judicial Magistrate, Chandigarh.