AJAY KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) HEARD . According to the prosecution, opium weighing 1-1/2 Kgs. was recovered from the possession of the petitioner on 7th May, 1998. Learned counsel for the petitioner submits that according to the prosecution, recovery was witnessed by one Nahar Singh son of Inder Singh. Seal after use was, however, handed over to HC Jaspal Singh. He submits that if Nahar Singh son of Inder Singh had been present at the spot and witnessed the recovery, seal after use in all probability would have be handed over to him. He further submits that the offer given to the accused which reads as follows : "fit aapnc bagdi talashi wade police officer jaan kise Magistrate sahib paaso karauni chahunda hai tan kara sakda hai, jisne kiha ki main kise wade police officer paaso talashi karauni har" does not conduce to the provisions of Section 50 of the Narcotic Drugs and Psycho-tropic Substances Act, 1985. Section 50 of the said Act lays down as follows:

(2.) LEARNED counsel for the petitioner submits that the offer made should have been straight conducing to the provisions of Section 50. He submits that if the ac­cused had been told that if he wanted, his search could be effected in the presence of a Magistrate or Gazetted Officer, the accused would have opted in favour of a Magistrate or a Gazetted Officer of some other department. He submits that the provisions of Section 50 are mandatory and if the offer made is not conducing to the provisions of Section 50, the very recovery will fall to the ground. He further submits that if the legislature intends that a particular thing should be done in a particular manner, the intention of the legislature is that it should be done in that manner and in no other manner and there­fore, ASI Gurcharan Singh should have carried out the mandate of Section 50 in its letter and spirit quite faithfully.