LAWS(P&H)-1996-2-122

BEANT SINGH ALIAS BANTA Vs. STATE OF PUNJAB

Decided On February 19, 1996
Beant Singh Alias Banta Appellant
V/S
STATE OF PUNJAB Respondents

JUDGEMENT

(1.) IN this case the question regarding proper compliance with Section 50 of the NDPS Act assumes significance. Section 50 of the Act, briefly stated, contemplates compliance of certain requirements when a person suspected of in possession of contraband articles was to be searched by the police officer. The provision contemplates that the search should be taken in the presence of the Gazetted Officer or the nearest Magistrate. The police officer is, therefore, under obligation to call upon such person to express his option in respect of the officer before whom he would like to be searched. That provision came to be considered and interpreted by the Supreme Court in case of State of Punjab v. Balbir Singh, (1994)3 Supreme Court Cases 299. That ruling emphasised the proper compliance of the abovementioned provisions while searching a person under the NDPS Act; and further observed that non-compliance of this provision would result into giving benefit of doubt to the accused and, therefore, acquittal. That case came to be further considered in case of Mohinder Kumar v. State, 1995(2) RCR 599, and their Lordships of the Supreme Court further clarified that even in a case of surprise accosting of the accused, the provisions of Section 50 of the NDPS Act should be followed from the moment the police officer undertakes the search on the suspicion that the said person possesses narcotic drugs. Briefly stated, therefore, the NDPS Act and the judicial pronouncements have amply clarified that the provisions of Section 50 of the Act should be followed. The strict compliance with those provisions has been contemplated with a view to rule out possibility of false implication. Such a step has to be provided in the legislation because the punishment prescribed under the NDPS Act is severe. Under these circumstances the Legislature had advisedly provided built-in checks to be followed. Despite such legal position, the Courts often come across the cases wherein police officers did not follow those provisions to the letter and spirit of it. All this had to be observed because in the case before me today, I found that the investigating officer has omitted to inform the accused regarding the exercise of the option to be searched in the presence of a Gazetted Officer. As such it should not be very difficult for the investigating officer to make proper offer to the person to be searched. In the present case the offer was in respect of search in the presence of a Magistrate only. May be the police officer considered these provisions merely a technical formality. But they should be made to realise that they should follow these provisions as per the letter and spirit of the section. In this case 5 kilograms of opium had been recovered, and due to imperfect compliance with the provisions of Section 50, a room for argument has been provided. At this stage of bail, this Court would refrain from making observation in respect of the effect of such imperfect compliance with the provisions of the NDPS Act. But under the circumstances, the Court is constrainted to grant bail to the accused. Such position would not have arisen if the proper steps had been taken while conducting the search of the accused. I would also further like to observe that it would also be in the interest of the prosecution to prepare a proper record in writing in respect of the compliance with Section 50 and other provisions of the NDPS Act. On finding that such are the repeated instances, I am of the opinion that a copy of this order should be sent to the concerned Secretary of the Home Department with a view that he should take appropriate steps. With these observations, I grant bail to the petitioner in this case. He be released on bail on his executing bail bond and surety bond to the satisfaction of the Chief Judicial Magistrate, Amritsar.