KUSHAL KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) IT is case of the prosecution that on the basis of the secret information, car in which petitioners were travelling was intercepted. From the search of the car no objectionable thing was recovered. However, from the jacket of petitioner No. 1, one Kg. 'Charas' was recovered. This is alleged to have been sewn into jacket. Nothing objectionable was recovered from the person of petitioner No. 2. From perusal of the FIR it becomes apparent that first informant is also Investigating Officer. The matter is, therefore, squarely covered by the judgment of this Court in Risala v. State of Haryana, 1996(2) RCR 707. From perusal of the FIR, it also becomes apparent that petitioners were not informed of their right to be searched in the presence of a Magistrate or a Gazetted Officer. In fact the petitioners are stated to have consented to be searched in absence of a Magistrate or a Gazetted Officer. This intention is said to be clear from the consent memo signed by the petitioners. However, consent memo clearly shows that it is written in Punjabi. Petitioners belong to Himachal Pradesh. They are not familiar with the Punjabi script at all. It is nowhere mentioned in the FIR that contents of the consent memo were explained to the petitioners. Today, brother of petitioner No. 1 has filed an affidavit in which it is stated that petitioners do not know how to read or write Punjabi. It is also stated that investigation has been done by the Investigating Officer in Punjabi. Consequently, there is a complete breach of the mandatory provisions of N.D.P.S. Act. In view of the above, bail to the satisfaction of Chief Judicial Magistrate/Duty Magistrate, Gurdaspur. Petition allowed.