BALKAR SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) ON 6.5.2001, ASI Sukhbir Singh, Special Staff, PP Panipat was present at the bus stand of Panipat in connection with general patrolling. At that time HC Naresh Kumar was also with him. There, he received secret information that Balkar Singh accused was coming to bus stand from Rajasthan with opium in the suit case. On receipt of this information, they reached the bus stand. There, they saw Balkar Singh carrying a suit case in his hand. ASI Sukhbir Singh told him through a notice in writing that he had suspicion that he was carrying some intoxicant in his suit case and if he wanted a gazetted office or a Magistrate could be sent for at the spot before effecting the search of the suit case. Balkar Singh opted to be searched before a Magistrate. Thereupon, he was produced before Shri Balraj Singh Jakhar, Naib Tehsildar. (It may be mentioned here that in Haryana, Naib Tehsildar is vested with the powers of Executive Magistrate). Suit case was opened. It was found to contain opium weighing 500 grams. 50 grams of opium was taken out as sample. Sample opium was sealed with the seal of ASI Sukhbir Singh bearing impression SS. Remaining opium weighing 430 grams was allowed to remain in the same plastic bag. It was also sealed with seal bearing impression SS. Seal after use was handed over to HC Naresh Kumar.

(2.) LEARNED counsel for the petitioner submitted that when ASI Sukhbir Singh was proceeding on to bus sand for raid on the accused on receipt of secret information, he should have reduced that secret information into writing and he should have sent copy of the contents of the secret information to senior officer as required under Section 42(2) of the Act. It was further submitted that Naib Tehsildar is not "Magistrate" of the type as is envisaged in Section 50 of the Act. He should have been a Magistrate and a gazetted office also. Naib Tehsildar in the State of Haryana is not a gazetted officer. He is not appointed by the Governor of the State. In Balbir Singh v. State of Punjab, 1994(1) RCR(Crl.) 719, their Lordships of the Hon'ble Supreme Court held that 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 requires, such a search would impart more authenticity and credit- worthiness to the proceedings while equally providing important safeguard to the accused. The authorised officer is obliged to inform the accused of this right to afford him a proper opportunity. Its non-compliance would affect the prosecution case seriously and vitiate the trial. It was submitted that some times an officer is not a Magistrate by virtue of his designation. He is only vested with the powers of a Magistrate. He does not become clothed with the designation of a Magistrate to all intents and purposes. He should be known to the people that he is a Magistrate. A Naib Tehsildar is not viewed by the people as Magistrate. He is viewed by them as Tehsildar. Intention of the Parliament while using the word Magistrate in Section 50 of the Act is that he should be a gazetted officer also. In the hierarchy, there is Naib Tehsildar, above him is Tehsildar and above him is EAC/Executive Magistrate.