MUKHTIAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) ORDER :- Relying on Mohinder Kumar v. State of Punjab (1995) 2 Reccent Cri 599 : (1995 AIR SCW 1208), Ali Mustaffa Abdul Rahman v. State of Kerala, (1995) 1 CCR 57 : (1994 AIR SCW 4393), and Amarjit Singh v. State (Delhi Admn.), (1995 2 Recent Cri 578, petitioner's learned counsel contends that from the first information report it is evident that only co-accused Prem Singh was given an option under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act), which is mandatory provision, as held in these two Apex Court decisions (Ali Mustaffa and Mohinder Kumar). He further contends that in Amarjit Singh's case, a Division Bench of Delhi High Court has held that even when search of a vehicle is taken, the provisions of Section 50 of the Act are required to be adhered to.

(2.) Respondent's learned counsel contended that it was a case of chance recovery. Though by way of abundant caution option was given to co-accused Prem Singh, but in the facts of the case it was not necessary to give such an option to the accused persons under Section 50 of the Act.

(3.) So far as the facts of Ali Mustaffa's, (1994 AIR SCW 4393) and Mohinder Kumar's (1995 AIR SCW 1208) cases are concerned, they are quite distinguishable. In these cases, when the personal search was to be taken, at that juncture, the Apex Court held that the police party was required to follow the provisions of Section 50 of the Act. In this case, it is evident that personal search was not taken. Search of vehicle was taken. No doubt, the Division Bench of Delhi High Court in Amarjit Singh's case (1995 (2) Recent Cri. R. 578) has taken a view that words' personal search in Section 50 would mean that if accused was in possession of drug may be on his body or may be on a particular vehicle which he is found to be in possession. But the provisions of Section 50 of the Act are quite evident. Section 50 of the Act lays down that when any officer only authorised under Section 42 is about to search any person under the provisions of Section 41, 42 or 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. Sub-Section (2) lays down that if such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-Section (1). From a plain perusal of sub-Sections (3) and (4) it is evident that this provision is meant only for personal search of an accused. Sub-Section (3) lays down that the Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. Sub-Section (4) provides that no female shall be searched by any one excepting a female.