DASHRATH LAL Vs. STATE

JUDGEMENT

(1.) K. C. Bhargava, J. This bail application moved by Dashrath Lal raises certain questions at the stage of bail. Heard learned counsel for the applicant as well as learned Additional Government Advocate.

(2.) THE first contention of the learned counsel for the applicant is that compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as the Act) with respect to the recovery has not been made. Secondly, it is argued that the weight of the articles recovered has not been written in the recovery memo and lastly that no independent public witness was taken at the time of recovery.

(3.) LEARNED counsel for the applicant has argued that the words "if such person so requires" will mean that the Police Officer making search has to inform the person who was arrested that he can demand as of right that this search can be taken before a designated Gazetted Officer or a Magistrate. On the other hand learned Additional Government Advocate has argued that the words do not mean that the Police Officer has to inform the person con cerned that he has right to be searched before a designated Gazetted Officer or a Magistrate. According to him if a request is made by the person so arrested then the police is obliged to take his search in the presence of a Gazetted Officer or a Magistrate. No doubt, it is true that the words used are that "if such person so requires" which according to prosecution indicate that a request has to come from the side of the accused applicant. It is common knowledge that in India the villagers and the persons who are engaged as cobblers, labourers, agriculturists or in similar professions rre not aware of their rights and the intricacies and necessities of law. These provisions have been incorporated under Section 50 of the Act for the protection of the persons arrested and it becomes the duty of the Police Officer making arrest to inform such a person that he has a right to be searched in the presence of a designated Gazetted Officer or a Magistrate. Therefore making in view of the intention of the legislature and the provisions of the Act which provide greater punishment for the offences under the Act, the reasonable construction which can be put on these words will be that a person who is going to be searched should be told by the Police Officer that he has a right to be searched before a designated Gazetted Officer or a Magistrate. The Police Officer cannot take shelter behind the plea that a request should come from the person who was arrested, As mentioned in the earlier part of this judgment a person who does not know about his rights of being searched before a designated Gazetted Officer or a Magistrate how can he make a request to be so searched. Therefore the provisions which are meant for safeguarding the interest of the citizens have to be strictly complied with and it is the duty of the Police Officer to inform the person so arrested about his right to be searched before a designated Gazet ted Officer or a Magistrate. On this question the learned Additional Govern ment Advocate has placed reliance on certain cases which are as under: (1) Surajmal Kanaiya Lal Soni v. State of Gajarat, 1991 Cr LJ 1483 (Guj ). (2) Rekha Parmeshwari alias Gnanmbigal Muthiah v. Assistant Collector of Customs, 1992 Cr LJ 901 (Mad ). (3) Wilfred Joseph Dawood Lema v. State of Mah. , 1990 Cr LJ 1034 (Bom) In all these cases it was held that the police officer taking a search is not duty bound to inform the person so searched that he 'has a right to be searched in the presence of a designated Gazetted Officer or a Magistrate. 5. On the other hand learnd counsel for the applicant has placed reliance on the following cases: (1) Salamatali v. State,1991 Cr LJ 1991 (MP ). (2) Sewa Ram and Rajuwa v. State, 1992 JIC 492: 1992 LLJ 191 (All ). (3) Bhanu Pratap v. State, 1992 Luck LJ 244: 1992 LCR 115. In all these cases it was held while dealing with the bail application that it is the duty of the police officer who is making a search to inform the person so arrested that he has a right to be searched in the presence of a designated Gazetted Officer or a Magistrate. Therefore after considering the cases referred to by the learned counsel for the parties, I find myself in agreement with the view expresed in the authorities citid by the learned counsel for the applicant that the right which is invited on a person to be searched before a designated Gazetted Officer or Magistrate should be told to him at the very inception when his search is going to be taken. Thus a person so arrested should be informed that he has a right to be searched in the presence-of a designated Gazetted Officer or a Magistrate. This requirement of law is mandatory and cannot be said to be directory and non-compliance of the same can be a ground for bail in such cases.