MOHINDER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal succeeds on a short ground that the search which has been offered to the accused by the investigating officer was partial and does not conform with the mandatory provisions of Section 50 of the N.D.P.S. Act. For the gravity of facts, I may mention that appellant Sh. Mahinder Singh son of Dhara Singh was convicted for the offence under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced to undergo RI for a period of 10 years and to pay fine of Rs. 1 lac. In default of payment of fine appellant was directed to undergo RI for a period of one year for having been found in possession of 2 kg. of poppy husk on 12.7.1995 in the area of village Titram without any permit or licence.

(2.) WHEN the appellant was apprehended on the basis of suspicion, he was specifically informed by the investigating officer that the bag of the appellant had kept on the back side of the motor cycle contains some narcotic drugs. The alleged compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 done in the following manner vide notice Ex.PC. The appellant was enquired as to whether he wanted to give the search of the bag in the presence of a gazetted officer or in his presence. Upon this the appellant deposed and stated before the investigating officer that he may call any gazetted officer in his regard. The short and legal point arises in these circumstances whether the compliance as mentioned in Ex.PC which is being repeated again by the investigating officer in the court, while appearing as PW-5 is the enough compliance for the purpose of section 50 of the N.D.P.S. Act or not ?

(3.) THE learned DAG appearing on behalf of the State has relied upon a Division Bench judgment of this court reported as Raj Kumar v. State of Haryana, 1997(2) RCR 798 and my attention was drawn to para No. 19 of the said judgment. I have gone through the citation. This judgments relied upon a judgment of the Supreme Court reported as Manohar Lal v. State of Rajasthan, 1996(1) RCR 660. A study of this judgment would show that this judgment has been given under different facts. Here in the cited case the option which was given to the accused to the effect whether he wanted to give the search in the presence of some senior officer. The accused gave consent to that effect. In that context the Hon'ble Judge was pleased to say that once the accused had given the consent to be searched in the presence of senior officer then he cannot say that he must be searched by the Magistrate or by a gazetted officer. Upon this it lies with the investigating officer to call any of the officers i.e. the Magistrate or gazetted officer. Here is a case where the option was completely partial and the effect is that partial offer is no offer in the eyes of law and does not conform with the provisions of Section 50 of the NDPS Act as a result of which recovery of the contraband stands vitiated.