PURAN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) PURAN Singh has filed this petition for regular bail under Section 439 Cr.P.C. in FIR No. 255 dated 23.4.2001 under Section 18 of the NDPS Act registered at Police Station Panipat.

(2.) BRIEFLY stated, the facts are that on 23.4.2001, Dhian Singh, Inspector, CIA Staff alongwith other police officials was present in a Government jeep near the outer gate of Bus Stand, Panipat. Balbir Singh, Head Constable No. 99 was driving the jeep. The petitioner was seen coming out of the bus stand and on seeing the police party he became perplexed and turned his back swiftly. However, he was apprehended on suspicion. He was served with a notice under Section 50 of the Act and was given an offer to get himself searched in the presence of some Gazetted Officer or a Magistrate. However, he elected to get himself searched in the presence of Magistrate. Consequently, Kewal Krishan Amrohi, District Revenue Officer, Panipat, was called and in his presence the bag, which the petitioner was carrying, was searched. On search, it was found to contain opium. 50 grams of opium was taken out as sample and the remaining on weighment was found to be 1 kg. and 950 grams. The sample packet and the remaining opium were made into separate sealed parcels and were sealed with the seal of DS. The seal after use was handed over to Chander Mohan, ASI. The articles were taken into possession vide memo attested by the witnesses. Both these packets were also sealed with the seal of KK D.R.O. The petitioner was apprehended.

(3.) COUNSEL for the petitioner contended that there is non-compliance with Section 50 of the Act inasmuch as the petitioner had elected to get himself searched in the presence of Magistrate but he was searched only in the presence of Sh. Kewal Krishan, District Revenue Officer, who was not the Magistrate. It is true that no notification has been produced by the prosecution inspite of adjournments given to show that at the time of alleged recovery, Sh. Kewal Krishan was acting as the Executive Magistrate. The learned State Counsel contended that it was not necessary for the police to call the Magistrate and it was enough that the petitioner was searched in the presence of some senior officer. For this contention, he placed reliance upon the authority of Supreme Court Raghbir Singh v. State of Haryana, 1999(1) RCR(Crl.) 573, which supported the above contention of the learned counsel. Para Nos. 8 to 11 of the said judgment read as under :-