BAIWINDER SINGH ALIAS BILLA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This is criminal Misc. No. 5737M/1999 whereby Balwinder Singh alias Billapetitioner herein has prayed for the grant of bail to him in case FIR No. 98 dated 5-11-1998 under Sections 18/61/85 of the NDPS Act, 1985 of P.S. Goraya.

(2.) The prosecution case in brief is that on 5-11-1998, SI Sarbjit Singh was going from Village Dosanjkalan towards Village Gujewal alongwith ASI Surjit Singh etc., in Gypsy PBO8-E-9411. When they reached near the turning of Village Kot Purewal, Didar Singh, Namberdar son of Sadhu Singh, resident of Lidhran Khurd, P.S. Goraya was joined. In the meantime, petitioner was sighted with a bag in his right hand. On seeing the police party, he turned back. It aroused suspicion in the mind of SI/Sarbjit Singh. He, accordingly, apprehended him. At the outset, he told him that he was suspecting that he was carrying some contra band and he would like to search him and if he wanted, he could be searched in the presence of a Gazetted Officer or a Magistrate or in his own presence. He replied that he wanted to be searched in the presence of a Gazetted Officer. A wireless message was flashed to Opinderjit Singh, DSP, Phillaur. He reached on the spot. In his presence, the accused was searched. That bag was found to contain 1 kg & 100 gms. of opium. Two samples of 10 gms. each were drawn. Those were made into sealed parcels. Remaining opium was also made into sealed parcel. Seal after use was handed over to ASI Surjit Singh.

(3.) Learned Counsel for the petitioner submitted that if Didar Singh Namberdar had been present at the post, seal after use would have been handed over to him. If seal after use was not handed over to him, that would suggest that he was not present at the spot. He further submitted that if the prosecution case is doubtful so far as the joining of Didar Singh Namberdar is concerned, where is the assurance that recovery of opium was witnessed by DSP, Phillaur, Sh. Opinderjit Singh. He further submitted that if ASI Surjit Singh were to be fair, just and faithful in complying with the provisions of Section 50 of the NDPS Act, 1985, he should have effected the search of the accused in the presence of some Magistrate. At Phillaur, there is no dearth of Magistrate.