Sikander Singh vs State of Haryana

K.C. Gupta, J.—Heard.

The petitioner has been booked in FIR No. 649 date 26.12.2000 u/s 15 of the NDPS Act registered at Police Station City Panipat for keeping in his possession 30 kgs. of poppy husk contained in a gunny bag without any permit.

Counsel for the petitioner contended that Section 50 of the Act has not been complied with inasmuch as according to the offer which the petitioner had accepted, he was to be searched in the presence of some Magistrate but he is alleged to have been searched only in the presence of Sh. Balram Singh Jakhar, Naib Tehsildar, Revenue Department, who was not the Magistrate and as such, the alleged recovery from the petitioner is vitiated and no case is made out. The learned AAG, Haryana, contended that according to Para 211 of Chapter V of Punjab Land Administration Manual, the Collector and his assistants are also Magistrate and since the Naib Tehsildar is the Assistant of the Collector, so, he shall be deemed to be a Magistrate. On the other hand, learned Counsel for the petitioner contended that Sh. Balram Singh Jakhar, Naib Tehsildar, may be a Magistrate for revenue purposes but he was not a Magistrate for the purpose of Section 50 of the Act inasmuch as the word ''Magistrate'' has been defined u/s 3 of the General Clauses Act, 1897 and according to it, Magistrate shall include every person exercising all, or any of the powers of a Magistrate under the Code of Criminal Procedure for the time being in force. He further contended that since Naib Tehsildar did not exercise all or any of the powers of the Magistrate under the Code of Criminal Procedure, so, it cannot be considered to be a Magistrate for the purpose of Section 50.

Keeping in view the facts and circumstances of the case and without commenting on the merits of the case, let the petitioner be admitted to bail to the satisfaction of C.J.M./Duty Magistrate, Panipat.

Petition allowed.