Sukhvinder Singh vs State of Punjab

Bakhshish Kaur, J.

On July 28, 1999, Bittu was apprehended while driving Truck PUN 8591. He was stopped in the area of village Alloya, where the police party was holding nakabandi under the instructions of D.S.P. The petitioner Sukhvinder Singh, sitting by the side of the driver was also apprehended. On search of the truck, four bags each containing about 35 kgs. of poppy husk were recovered. Before conducting the search, the consentmemo was prepared, whereby A.S.I. had informed Sukhvinder Singh that the truck was to be searched and in case he so desires search can be made in the presence of any gazetted officer or Magistrate, to which he replied that the search may be made by him as he had faith in him. The companion of the petitioner, who was driving the truck ran away from the spot.

Mr. Sunil Chadha, the learned counsel for the petitioner contended that there is noncompliance of the provisions of Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). No independent witness was joined in the police party. The petitioner was not informed that his search was to be effected by the gazetted officer or the Magistrate and that on this short ground, the petitioner is entitled to the concession of bail. It was also contended that the coaccused, namely Bhinder had already been given concession of bail, therefore, the petitioner is also entitled to the same.

I have considered the submissions made by Mr. Sunil Chadha, the learned counsel for the petitioner and Dr. A.R. Sidhu, Deputy AdvocateGeneral, representing the State.

First of all, dealing with the argument that Bhinder, coaccused, has been allowed bail, therefore, the petitioner should also be allowed bail, I am of the view that his case is different from the case of the present petitioner. Bhinder was not arrested from the spot; that nothing was recovered from his possession; and that he was arrested as his name was disclosed by his coaccused.

Now coming to the other aspect of the case, whether the petitioner is entitled to bail, Mr. Sunil Chadha, the learned counsel for the petitioner, contended that the petitioner was not informed that his search could be effected by the gazetted officer or the Magistrate; that the petitioner has the right to require his search being conducted in the presence of a gazetted officer or a Magistrate and the failure to inform him of his right, has rendered the search illegal and this itself would amount to noncompliance of Section 50 of the Act.

The objection raised by the learned counsel that the petitioner was not apprised of his right of search by a gazetted officer or a Magistrate is not acceptable at this stage, because in the first information report, it is specifically mentioned that an offer was given and that he was apprised of his right that his personal search is to be effected and in case he desires the same can be effected before a gazetted officer or a Magistrate. The petitioner thereupon answered that he had faith in him (A.S.I.) and he may conduct his personal search, which resulted in the search of the truck in question. The noncompliance of the provisions of Section 50 of the Act is to be determined by the Court on the basis of the evidence at the trial stage and the findings on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal, as has been observed by their Lordships of the Apex Court in the case reported as The State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 : 1999(3) All India Criminal Law Reporter 1. It is also held that without giving an opportunity to the prosecution to establish at the trial that the provision of Section 50 of the Act and particularly the safeguards provided in that Section were complied with, it would not be advisable to cut short the criminal trial.

In Baldev Singh''s case, 1999(3) RCR (Crl.) 533 (supra), Hon''ble Dr. A.S. Anand, Chief Justice of India, has been pleased to observe in paragraph 4 at page 9, which reads as under :

"Drug abuse is a social malady: While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has effect of producing a sick society and harmful culture. Antidrug justice is a criminal dimension of social justice. ..... ..... ....."

In the given case in hand, the petitioner who was informed of his right to have his personal search conducted before a gazetted officer or a Magistrate if he so required, opted not to be searched before a gazetted officer or a Magistrate; rather he specifically stated that he had faith in the A.S.I. and that he may conduct his search.

Again the observations made by their Lordships of the apex Court in Baldev Singh''s case (supra) cannot be lost sight of, particularly where the case is of a huge recovery, it is observed the there is indeed, a need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. With these observations no case for bail is made out.

In the result, bail to the petitioner is declined. However, the observations, as above, be not considered as an expression of opinion on the merits of the case.