HAPARIYA ALIAS KUDU Vs. STATE

JUDGEMENT

(1.) This is a petition under Sec. 439 of the Code Criminal Procedure for release of the petitioner on bail. Mr. Kalra, the learned Counsel appearing on behalf of the petitioner submitted that in the present case there is violation of Sec. 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 inasmuch as the petitioner was not given any opportunity to give his option whether he should be taken before the Gazetted Officer/Magistrate for search. When learned counsel drew my attention to the First Information Report and pointed out that there is no mention of the fact that the petitioner was given the option as to whether he would like to be searched in the presence of a Gazetted Officer or the Magistrate. He also drew my attention to the notice under Sec. 50 alleged to have been served on the petitioner (copy of which is at page 24) and stated that even the notice does not indicate that such an option was given to the petitioner. The learned Counsel, therefore, contended that the petitioner should be released on bail. In support of his contention he placed reliance on a judgment of this Court reported in the case of Ravinder Kapoor Vs. State, 1991 (2) EFR 432 (Delhi). Ms. Gupta the learned Counsel on behalf of the State, however, submitted that in the present case the notice under Sec. 50 was given to the accused before conducting the search. I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and have perused the copy of the FIR as well as copy of the notice. From the copy of the notice, I find that the accused was told. that he would be searched before some Gazetted Officer or Magistrate. But the FIR indicates that in fact he was not searched in the presence of any Gazetted Officer or Magistrate. Keeping in view the aforesaid fact, I am of the opinion that the petitioner is entitled to bail. Accordingly, I direct that the petitioner be admitted to bail on furnishing a bail bond in the sum of Rs. 20,000 with two sureties in the like amount to the satisfaction of the learned trial Judge. With this order petition stands disposed of. The observation given by me hereinabove will not have any bearing on the merits of the case. Petition Allowed.