RAMESH KUMAR ALIAS RAJU Vs. STATE

JUDGEMENT

(1.) U. K. Varma, J. This is an application for bail on behalf of Ramesh Kumar alias Raju. It is alleged that at 2,50 p. m. on 23- 12-1989 when the applicant was waiting to board a train on the platform No. 5 of the Gorakhpur Railway Station six packets of Charas weighing 8 kg. worth Rs. 2,40,000 for those dealing in this contraband had been recovered by the Station House Officer Abhai Singh. The report of the incident was lodged within an hour at 13. 45 p. m. in the Police Station G. R. P. , Gorakhpur. The counsel for the applicant argued that the alleged search and recovery being illegal, the appli cant was entitled to bail. He emphasised that the officer making the search was not so empowered by the State Government under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and further that there had been a violation of Section 50 of the Act as no offer prior to search had been made to the applicant to exercise the option to get himself searched before a Gazetted Officer of any of the depart ments mentioned in Section 42 or by the nearest Magistrate, He referred to the decision of the Rajasthan High Court in Prithvi raj v. State in Criminal Appeal No. 124 of 1988 decided on August 16, 1989 and to a decision of the Himachal Pradesh High Court in State of Himachal Pradesh v. Sudarshan Kumar reported in 1989 CRLJ at page 1412.

(2.) I have given my anxious considerations to the contentions of the counsel for the applicant. The Section 43 of the Act as is the title of this section, deals with power of seizure and arrest in public places and so is applicable to the facts of the case for the seizure in question was allegedly made at a public place viz. the platform of the Gorakhpur Railway Station. In Section 43, the obligation to seize narcotic drug or psychotropic substance in respect of which an offence is believed to have been committed under Chapter IV has been assigned to an officer or any of the departments mentioned in Section 42. In this section there is no specific reference to prior authorisa tion of that officer as we find in Sections 42 and 49 which deal with search of a building or conveyance or enclosed place or animal. Incase on the strength of the wordings of Section 50, it was to be believed that the officer referred to in Section 43 has also to be an authorised officer, it may be noted that the State of Uttar Pradesh vide Notification No. 3555-E-2/xiii-23-85, dated October 8, 1986 has authorised officers of the Excise or Police department not below the rank of Inspector and the Revenue Department not below the rank of Tahsildar to exercise the powers under Section 42 of the Act. This being the position it would not be justifiable to jump to the conclusion that the search and seizure in the instant case had been made by an officer who was not authorised although he has been described to be an Inspector in this application for bail.