JAVED Vs. STATE OF U P

JUDGEMENT

(1.) I. M. Quddusi, J. The present ap peal has been filed against the judgment and order dated 1-8-1994 passed by the 1st Additional Sessions Judge in Special Case No. 28 of 1993 convicting and sentencing the appellant to undergo for ten years RI under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

(2.) ACCORDING to the prosecution case on 20-8-1993 at about 5. 50 p. m. the Station Officer of P. S. Babina, district Jhansi namely, R. P. Yadav alongwith Head Constable Ramesh Prasad Tiwari and other police constables were returning after making investigation in case Crime No. 182 of 1993, under Sections 395 and 397, IPC. The appellant was seen coming from Kasba Babina towards the curve of In-dogulf factory. When he saw the police Jeep he left the road and started taking fast steps. He was chased thereafter by the lice party and caught him on the field, is name was asked who told his name Javed son of Mohd. Rizavee, R/o. Kalina Kumbha Road, Santa Cruz, Bombay. His search was taken in the presence of police personnels and a polythene packet con taining Charas was recovered from the front right pocket of Jeans. He could not show any licence for that. The appellant told the police party that his grand-father namely, Yahiya Khan was a retired soldier who lives at Shastri Nagar and the appel lant has came from Bombay to save his life. The recovered charas was sealed in the same packet and a recovery memo was prepared on the spot, no public witness could be taken as the arrest was made all of a sudden. In the recovery memo prepared by the S. O. the sentence mentioned was that the S. O. asked the accused to call fop the Magistrate but he denied saying that he has faith on him.

(3.) IN the matter of State of Punjab v. Balbir Singh, JT 1994 (2) SC 108; 1995 JIC 382 (SC ). The Hon'ble Supreme Court has held that Section 50 lays down that any officer duly authorised under Section 42, who is about to search any person under the provisions of Sections 41, 42, and 43, shall, if such person so requires, take him without unnecessary delay to the nearest Gazetted Officer of any of the depart ments mentioned in Section 42 or to the nearest Magistrate and if such requisition is made by the person to be searched, the concerned authorised officer can detain him until be can produce him before such Gazetted Officer or the Magistrate. After such production, the Gazetted Officer or the Magistrate, if sees no reasonable ground for search, may discharge the per son. But otherwise he shall direct that search be made. To avoid humiliation to females, it is also provided that no female shall be searched by anyone except a female. The words " if the person to be searched so desires" are important. One of the submission is whether the person who is about to be searched should be himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search would be conducted. IN the context in which that right has been conferred, it must naturally be presumed that it is im perative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. Tour, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would im part much more authenticity and credit-worthiness to the proceedings while equal ly providing as important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right.