DHARMENDRA GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) M. L. Singhal, J. The applicant Dharmendra Gupta has applied for bail in Case Crime No. 99 of 1997, under Sec tions 20/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (here inafter referred to as the N. D. P. S. Act), P. S. Najirabad, District Kanpur Nagar. I have heard the learned Counsel for the accused-applicant and U. N. Shukla the learned Additional Government Advocate.

(2.) THE prosecution version as embed ded in the FIR is that one Dinesh Kumar Sishodia, Inspector along with certain po lice officials on 23-4-1997 while on pa trolling duty, were standing on Mariyampur cross- road in Kanpur City, at that very time Shri Shrikant Singh, Circle Officer, Najirabad along with the other police of ficials came on jeep, it was about 7. 20 p. m. All of them were having conversation amongst themselves. At about 7. 30 p. m. , a person came on a motor cycle and in formed that a person coming behind on a scooter was a man of suspicious character, his search be taken and thereafter disap peared. All the police officials became cautious, took the search inter se and nothing was found objectionable and en deavour was made to call public witnesses but none of them was available. Within five minutes a person came on the scooter, who was stopped. On interrogation he disclosed his name as Dharmendra Gupta-accused-applicant. Search of the accused-applicant was taken, in the 'diggi' under the seat of the scooter, in a bag of polythene kept in a steel tiffin, about 260 gms brown sugar was recovered from the possession of the accused. THE accused-applicant disclosed that the article recovered was brown sugar, weighed 260 gms. On this the accused-applicant was informed that in the police party Circle Officer, Najirabad a police officer was also present and the search of the accused-applicant was being taken in the presence of the Circle Officer. Further a sum of Rs. 5,ooo/-was recovered from the possession of the accused, which the accused said to have collected from the sale of the brown sugar. THEreafter the necessary formalities regarding the sealing of the recovered goods were performed.

(3.) IN State of Punjab v. Balbir Singh (supra), with regard to the compliance of the provisions of Section 50 of the N. D. P. S. Act the Supreme Court held : "section 50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so re quires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an impor tant 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. Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. The legislature while keeping in view the menace of illicit drug trafficking deemed it fit to pro vide for corresponding safeguards to check the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricat ing by the prosecution, Section 50 is enacted. When such is the importance of a right given to an accused person in custody in general, the right by way of safegaurd conferred under Sec tion 50 in the context is all the more important and valuable. Therefore, it is to be taken as an imperative requirement on the part of the offi cer intending to search. It must, therefore, be held that on prior information the empowered officer or authorised officer while acting under Section 41 (2) or Section 42 should comply with provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magis trate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. The provisions of Section 50 are thus mandatory. "