MAJOR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner in this case is being prosecuted on the allegation that during search on 3.9.1995, he was found in possession of 2 kg and 250 grams of opium. The text of the FIR indicates that the police party while on patrol duty spotted the petitioner and on suspicion search him. During the search the above mentioned narcotic drugs was recovered. The material before me does not indicate that provisions of Section 50 of the N.D.P.S. Act were adhered to or not. As the position now appears from the FIR, there was no compliance with Section 50 of the Act. As to whether that was enough entitle the petitioner to acquittal would be another moot question for determination, and at this stage of bail, I would retrain myself from expressing any opinion in that respect. In that connection, my attention was invited to the case of Mohinder Kumar v. State of Punjab, 1995(2) RCR 599, in which their Lordships of the Supreme Court considered that the case of State of Punjab v. Balbir Singh, 1994(3) Recent Criminal Reports 737 : (1994)(3) SCC 299, and further observed that from the stage the police officer has reason to believe that the accused persons were in custody of narcotic drug and sent for the Panches, he was under obligation to proceed further in the matter in accordance with the provisions of the Act. Their Lordships were of the view that provisions of Section 50 would be attracted in a case as mentioned above ruling. In this case the patrolling party appears to have spotted the accused and suspected him on finding his movements suspicious. It would be a moot question for consideration for the trial Court whether the suspicion thus entertained by the police pertained to the possession of narcotic drug or to some other reasons. The FIR at least is silent in that respect. All the same these aspects which deserve further judicial determination should be borne in mind while considering the bail.

(2.) THE counsel for the petitioner brought my attention to a photostat copy of an affidavit sworn in by a witness who happened to be present and attested the recovery of the contraband during the search. In that affidavit the witness has stated that nothing in his presence was recovered from the petitioner, and he was made to sign certain papers. In addition to above, it was also contended in the petition that the lodging of the persecution is an outcome of political vegeance in-as-much as the petitioner's father who is the present Sarpanch had defeated the earlier Sarpanch Tehal Singh who is distantly related to SSP Taran Taran, District Amritsar. It was further submitted by the counsel that admittedly, sample seal used sealing the opium had not been given to the witness who happened to attest the seizure memo. According to him that renders the prosecution case vulnerable.

(3.) ON executing bail bond and surety bond to the satisfaction of the Chief Judicial Magistrate, Amritsar, the petitioner be released on bail; on further condition that he shall not in any manner tamper with the prosecution evidence or create obstruction in the smooth progress of the investigation or of the case.