RAM DAYAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE petitioner has been booked in FIR No. 176 dated 21.3.2001 under Section 18 of the NDPS Act at Police Station City Panipat for keeping in possession 3 kgs. of opium without any permit.

(2.) COUNSEL for the petitioner contended that the search was conducted in the presence of Deputy Superintendent of Police who was a Gazetted Officer of the Police and being Officer of the Police Department was biased to depose in favour of the police and as such, it cannot be held that there was compliance of Section 50 of the said Act that the search had been conducted in the presence of Gazetted Officer, so, the petitioner is entitled to bail. For this contention, he placed reliance on Balwinder Singh alias Billa v. State of Punjab, 1999(3) RCR(Crl.) 117. In my opinion, the contention of learned Counsel is not tenable and the above mentioned authority is not applicable to the facts of the present case. It is nowhere stated in the Act that the Gazetted Officer, who is present at the time of search of the accused, should not belong to the Police Department. On the other hand, it is stated that accused should be produced before any Gazetted Officer. That means, he can also be produced before the Gazetted Officer of the police. He further contended that seal after use was not handed over to independent witness and as such, the alleged recovery was doubtful. For this contention, he placed reliance on Balwinder Singh alias Billa v. State of Punjab, 1993(3) RCR (Crl.) 1117. In the present case, it is not the case of the prosecution that independent witness was present at the time of search. So, there is no question of handing over the seal to independent witness. It will be seen at the time of trial of the case as to why independent witness was not joined. The DSP of the police is as good witness as any other Gazetted Officer. There is prima facie no reason to discard his presence or statement. He also contended that there was no evidence that the petitioner was a previous convict and as such, he should be released on bail. In my opinion, at this stage it cannot be said that no case is made out against the petitioner and if released on bail, he will not again commit the offence. Hence, the bail petition is dismissed. Petition dismissed.