Surinder Singh vs State of Punjab

M.L. Singhal, J.

Heard. According to the prosecution, 750 grams of opium was recovered from the possession of Surender Singh and Raj Kumar who were carrying this opium on scooter on 4.4.1999. According to the prosecution, Surinder Singh was driving the scooter while Raj Kumar was sitting on its pillion holding polythene bag in his right hand containing opium. Learned counsel for the petitioner submits that there has been no compliance with the provisions of section 50 of the Narcotic Drugs and Psychotropic Substance Act, 1985 by SI/SHO Joginder Singh as if he had been earnest and sincere in complying with the said provisions, he would have effected the search of the scooter in the presence of a gazetted officer or a magistrate. He submits that section 50 was introduced in the Act not as an idle formality or as a ritual but was introduced in this Act with a view to its being complied with in all earnestness and sincerity because of the severe punishment provided in this Act for possession of contraband opium etc. He submits that the possession of contraband opium is punishable with 10 years imprisonment and fine of Rs. 1 lac in the minimum under Section 18 of the Act and therefore, the legislature in its wisdom introduced section 50 in the Act so that if search takes place in the presence of a gazetted officer or a magistrate, the false implication is obviated or considerably eroded. He submits that as the things are, recovery rests on the statements of SI Joginder Singh etc. who are police officials. He submits that if SI Joginder Singh was not to take the accused to a gazetted officer or a magistrate, he should atleast have this recovery witnessed by an independent witness so that some sort of ring of truth was attached to this recovery.

Learned counsel for the petitioners submits that when this recovery could have been witnessed by an independent witness or gazetted officer or Magistrate, and this recovery is not witnessed by one of them, the court may not be able to sentence the accused to 10 years imprisonment and fine of Rs. 1 lac in the minimum. In the face of what has transpired above, it may be possible for the court to entertain doubt about the genuineness of the recovery.

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