ASHOK KUMAR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) A. B. Srivastava, J. On a reference by a learned Single Judge (Hon'ble G. S. N. Tripathi, J.) the following has been referred to this bench for decision: "whether the ruling Sewa Ram v. State, reported in 1992 (29) ACC Page 586 lays down the correct position of law or not?"

(2.) SINCE the aforesaid referred to us arises in connection with a bail application moved in a criminal appeal against connection, only short facts are required to be men tioned. The accused appellant was prosecuted before the Additional Sessions Judge, Varanasi for offence under Section 21 (1) of the Narcotic Drugs and Psychotropic Substan ces Act, 1985 (hereinafter reference as the Act) on the allegation that while on patrolling duty on April 12, 1992, the Station Officer, Police Station Luxa, District Varanasi, alongwith other members of the force, on getting suspicious about the movement of two persons caught hold of them at about 3. 30 P. M. The arrested persons gave out their names as Ashok Kumar Singh and Suraj. On search of their person from the possession of Ashok Kumar five packs of heroin and from the Co-accused ten packs of heroin were recovered. A recovery memo was prepared, the recovered article was duly sealed and after registering a case and usual investigation, charge-sheet was submitted which led to the trial and conviction of both the accused persons.

(3.) THE learned Single Judge has taken the view that the provisions of Section 42 (1) regarding taking down information in writing is not mandatory rather it is directory, to be followed as far as possible and its breach would not necessarily result in failure of prosecu tion. As regards Section 50 the duty to take the person to be searched to the nearest Gazetted Officer or the nearest Magistrate is cast upon the Officer taking search, only when the person to be searched makes a request for the same. If he does not so require, no such duty is cast upon him. In view of this opinion, the learned Single Judge has referred the question aforesaid to a larger bench.