MAHINDER DASS Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PETITIONER seeks grant of bail in a pending trial under sections 18, 61, 85 of the Narcotic Drugs and Psychotropic Substances Act.

(2.) ACCORDING to the first information report No. 71 dated 4.5.1996 on an information received at the police station Longowal, Sarvshri Amrik Singh ASI, lnderjit Singh ASI, Teja Singh Head Constable and other constables whose names find mention in the first information report proceeded to village Cheema as the information given to them was that persons are indulging in the smuggling of Narcotic Drugs Psychotropic Substances, Opium etc. It is around 3.30 in the evening that a passer bye, whose name and address was Kulwant Rai was associated as a party. Meanwhile a person was seen coming from the side of village Beer Kalan in whose right hand he was holding a white plastic cane bag, who on seeing the police party tried to turn back. At this ASI Balbir Chand became suspicious and stopped him. On checking the bag which he was found to be carrying on in his hand, some intoxicant like thing was suspected, probably opium wrapped in a piece of paper and so with a view to effect search a wireless message was sent so that the search could be effected in the presence of a gazetted officer. At around 4.40 P.M. in the evening Shri Gurdarshan Singh DSP, Special Branch, reached the spot, under whose supervision and presence and in the presence of Kulwant Rai the witness and other employees the search of the bag of Mahinder Dass the petitioner was carried. Petitioner was found to be in possession of 3 Kg. of opium. Two packets, containing 10 Gms. of opium each were taken as samples, and papers were prepared. Plastic bags along with their papers and box containing opium and other papers were sealed by ASI Balbir Chand and Gurdarshan Singh DSP with his stamp G.S., and so case was registered against Mahinder Dass for having committed an offence under Sections 18, 61 and 85 NDPS Act for keeping in illegal possession, without permit, this quantity of opium. Petitioner's bail application was rejected by Additional Sessions Judge vide order dated 19.11.1996.

(3.) ACCORDING to the learned counsel for the petitioner, there has been a non -compliance of mandatory provision of Section 50 of the NDPS Act as it was incumbent upon the authority to ask the accused about the search i.e. whether it be conducted before a gazetted officer or before a Magistrate. Since in the instant case Balbir Chand on his own sent a wireless message to police station Longowal for sending a gazetted officer, such being not in conformity with the provision of Section 50 of the Act as well as the decision of the Apex Court, petitioner deserves to be enlarged on bail. Counsel placed reliance upon the decision of the apex Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 : [1994(1) All India Criminal Law Reporter 863 (SC)]. Counsel also placed reliance upon the decision in Beant Singh alias Banta v. State of Punjab, 1996 (2) Recent CR 158 : [1996(2) All India Criminal Law Reporter 268 (Pb. and Hry.)], by Shri S.C. Malte, J. Section 50 of NDPS Act reads as : - "50 Conditions under which search of persons shall be conducted : - (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so required, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Megistrate. (2) 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). (3) 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. (4) No female shall be searched by anyone excepting a female."