Ajit Singh vs Delhi Administration
1992 Latest Caselaw 408 Del

JUDGMENT

Usha Mchra, J.

(1) Ajit Singh, petitioner herein, was arrested on 11th February, 1990 on the allegation that on his personal search 600 gms. opium was recovered from his possession. Out of this 600 gms. 50 gms. sample was separated and sent to the CPSL. Petitioner has been booked under the Narcotic Drugs and Psycho tropics Substances Act (hereinafter to be referred as the Act). Before arrest and before search the raiding party officials offered to be searched by the accused. Acp who is a gazetted officer in. his presence the search of the accused was done and on search the above quantity, of Opium was recovered.

(2) Mr. Grover appearing for the petitioner has sought bail. inner alia, on the grounds that the evidence in this case has already been recorded. The petitioner was not given the offer to be searched in the presence of a Gazetted Officer or a Magistrate. The more fact that the Acp is a Gazetted Officer is not sufficient compliance of Sec.50 of the said Act. According to Mr. Grover Sec.50 of the Act requires that the accused has to be given an offer whether he would like to be searched by a Gazetted Officer or by a Magistrate. These two offers have to be given. The choice is that of the accused and if these offers are not given then it would amount to non-compliance of the provisions of the said Act. To strengthen his arguments he has placed reliance on the decisions of this Court as well as other High Courts, reported as Mahender Singh Vs. State of Punjab 1992 (1) Chandigarh Criminal Cases 8, Jayapelan Vs. State 1989 C.C.Cases 239, Chhotey Lal Vs. State of Rajasthan 1990 (1) Crimes 246. In these authorities he has pointed out that the law requires compliance of Sec.50 of the Act failing which no charge can be made out against the petitioner and the petitioner in that case is to be acquitted.

(3) On the other hand, Mr. Sharma contended that Acp is a Gazetted Officer. Bare reading Section 50 would make it clear that the accused ha an option to be searched by both the Gazetted Officer as well as by a Magistrate. Nor- it is the intention of the legislature that if the Gazetted Officer 'is there then the accused should also be taken to a Magistrate. In this case since the Acp search was conducted it was for the petitioner to have pointed out that he should betaken to a Magistrate and since he did not choose to go to the Magistrate, there is sufficient compliance of the provisions of Section 50 of the Act. The search was conducted before a Gazetted Officer, i.e. ACP. According to him in the judgment cited by the counsel for the petitioner the search was not conducted before ACP. Therefore, those will not be relevant of applicable to the facts of this case.

(4) I have beared and learned counsel for the parties and have persued the record. Admittedly, the Acp arrived at the spot with in minute after the accused had been apprehended and the Acp appeared all of a sudden. It is also not disputed that the Acp is a Gazetted Officer and Sec.50of the Act provides that the accused shall be taken to the nearest Gazetted Officer of any of the departments mentioned in Sec.42 or to a Magistrate, Section 42 envisages a Gazetted Officer of the police department also and as the Acp was the Gazetted Officer and came at the spot all of a sudden the petitioner was searched in his presence.

(5) Mr. Grover has also contended that in the alternative he may be given interim bail because the wife of the petitioner Smt. Satwant Kaur has been suffering from chest pain.,i.e.coronery disease and all the connected problems. She was under the R.B Jain Hospital who referred her case to G.B.Pant Hospital. She was admitted in the hospital on 28th June, 1992. Her condition is serious. Previously also on account of her illness he was given interim bail. The facts about the illness of petitioner's wife had earlier been also verified when the order for inform bail was passed on 7th April, 1992 that the petitioner had not misuse the interim bail.-.

(6) It is further clarified that the observations made above will have no bearing on the merits of the case.