SANTOSH MISHRA Vs. STATE

JUDGEMENT

(1.) This is a petition under Section 439, Cr.P.C. for grant of bail to the petitioner in case FIR No. 775/2002 under Sections 17/61/85, NDPS Act, P.S. Uttam Nagar.

(2.) Prosecution allegations in brief are that on 13.10.2002, SI Tejpal Singh along with other staff were on patrol duty near the DDA Flats, Vindapur, Delhi; at about 9 p.m., he received information that one person with opium will be coming near the Mazar; SI informed the senior officers, on telephone; he was ordered to form a raiding party; SI asked 4-5 persons to join the raiding party, but they declined to do so and went away without telling their names and addresses; at about 9.30 p.m., the petitioner was found coming with a polythene bag in his hand; he was identified by the informer; after looking at the police party, the petitioner tried to run, but he was overpowered; he was given a notice under Section 50 of the NDPS Act. He declined the offer to be searched in the presence of Gazetted Officer or a Magistrate; he was found carrying a bag; on checking it was found having 1 kg. and 350 gms. of opium; 100 gms. of opium was taken out as a sample and rest of the opium was seized and sealed as per procedure; sample analysis was found to be opium by the FSL; after investigation, challan has been filed; charge has been framed and the matter is pending trial.

(3.) Learned Senior Counsel, appearing on behalf of the petitioner argued that as per the prosecution allegations, the place where the petitioner was detained and searched and the recovery was effected was located in a thickly populated area. No effort was made by the SI to call upon 2 or more independent and respectable inhabitants of the locality before carrying out the search. Learned Senior Counsel, referring to Sections 100(4) and 165(4) of Code of Criminal Procedure, 1973 argued that it is a mandatory requirement of law and in the absence of independent witnesses and the search, the entire prosecution story is likely to be disbelieved and the petitioner is entitled to be released on bail. Learned APP for the State argued to the contrary stating that information was received by Sl, while he was on patrol duty at about 9 p.m.; search was to be made, not of a place but of a person. As stated in the FIR itself, effort was made to join some public witnesses; but it did not succeed and without waste of time, SI formed the raiding party and conducted a search. As per the settled law omission to join independent witnesses would not vitiate search unless prejudice is shown. The prosecution is required to explain the reason for not joining independent witnesses.