RAM PARSAD Vs. STATE OF HARYANA

JUDGEMENT

(1.) Heard.

(2.) The petitioner has been booked in FIR No. 140 dated 13.3.2001 under Section 18 of the NDPS Act for keeping in possession 3 Kgs. of opium without any permit.

(3.) The learned AAG, Haryana, contended that there is compliance with Section 50 of the Act inasmuch as the petitioner was given offer that he could get himself searched in the presence of some Gazetted Officer or Magistrate and the petitioner preferred himself to be got searched in the presence of Gazetted Officer and accordingly DSP Kuldip Singh, Samalkha (sic) and three Kgs. of opium was recovered from the gunny bag which the petitioner was carrying in his right hand. Counsel for the petitioner contended that no independent witness was joined and further the Gazetted Officer of some other department should have been called to establish the recovery beyond reasonable doubt and he should not be the DSP of the Police Department. He further contended that the object of legislature in enacting Section 50 of the Act is to give assurance to the accused that there will not be any false implication. For this contention, he placed reliance on Kitab Singh v. State of Haryana, 1998 1 RCR(Cri) 692, which supported the above contention of the learned counsel. I respectfully differ with this authority because in Section 5, it is not stated that the Gazetted Officer of the police could not witness the recovery and infact the words are "that it could be any Gazetted Officer or any Magistrate". Since the petitioner had stated any Gazetted Officer, so, the DSP of the Police was called. Prima facie, it cannot be said that the DSP was interested in the success of the case. He also stated that the Investigating Officer who had conducted search should not have investigated the matter. Again, it is a matter of evidence whether the petitioner has been prejudiced in any manner. Prime facie, it does not appeal to reason that he has been prejudiced in any manner. At this stage, I cannot say that no case is made out against the petitioner under Section 37 of the NDPS Act and if released on bail, he will not commit the offence again.