BINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is criminal misc. No. 24651 -M of 1998 by Binder Singh and Sukhdev Singh, whereby they have prayed for bail in case F.I.R. No. 105 dated 12.7.1998 registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station Siwani.

(2.) PROSECUTION case in brief is that on 12.7.1998 S.I./S.H.O. Police Station, Siwani was standing on the road in front of bus -stand of Village Siwani along with H.C. Mandroop Singh and constable Dilbagh Singh in Government vehicle No. HR -16 5084 being driven by constable Shamsher Singh. In the meantime one Binder Singh and Sukhdev Singh -petitioners came from the side of bus -stand, Siwani. They were apprehended. Each of them was holding bedding. S.I./S.H.O., Police Station Siwani told them that he was suspecting the beddings to be containing some narcotic and therefore he would effect search thereof and if they wanted, they could be taken to a Gazetted Officer or Executive Magistrate for searching the bedding and they opted in favour of either some Gazetted Officer or some Executive Officer. According to the prosecution, Tehsildar -cum -Executive Magistrate, Siwani was sent for, Shri Dugar Pal, Tehsildar Siwani came there. Search of the beddings yielded 18 -1/2 kgs of poppy husk each.

(3.) LEARNED counsel for the petitioner submitted that there is no compliance of the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 inasmuch as the offer alleged to have been made was for some Gazetted Officer or Executive Magistrate whereas it should have been Magistrate or Gazetted Officer. S.I./S.H.O. Police Station, Siwani should not have restricted the offer to Executive Magistrate. He submitted that if the offer had been wide enough to cover the field of Section 50 ibid, they could have opted in favour of Magistrate who could be a Judicial Magistrate. Reply to the offer said to have been given by them, learned counsel submitted is equally inconducive to provisions of Section 50 ibid inasmuch as they said it should be either Gazetted Officer or some Executive Magistrate. It was further submitted that seal after use was alleged handed over to HC Mandroop Singh. Learned counsel for the petitioners submitted that if independent witness has been present there, seal after use would have been handed over to him .