LAKHWINDER SINGH ALIAS DOGAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) LAKHWINDER Singh alias Dogar was apprehended for the possession of nine bags of poppy husk, out of which eight bags were found to contain 35 kgs of poppy husk each, whereas 9th bag contained 17 kgs of poppy husk. Therefore, by way of filing this petition, the petitioner seeks bail.

(2.) ON March 25, 1999, Inspector Devinder Singh along with other police officials was patrolling the area and checking the suspected persons on the link road of Dhanstha to village Asmanpur. On reaching the canal minor bridge of village Asmanpur towards village Jorhi Sahib, Lakhwinder Singh alias Dogar was spotted sitting on the gunny bags. On seeing the police party, he tried to slip away, but he was apprehended. The Inspector informed him that it was suspected that some incriminating article was contained in the gunny bags. These are required to be searched. In case he so desires, the search can be searched (conducted ?) in the presence of a gazetted Officer. The petitioner opted that it may be conducted by a gazetted Officer. Consequently, his consent-memo was prepared and the gazetted offer i.e. D.S.P. of Circle Samana reached the spot. An independent witness, namely Pala Ram son of Chanan Ram was also associated in the police party. Thereafter the D.S.P. conducted the search in accordance with the provisions as envisaged under section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The entire poppy husk contained in the bags was put together at one place, out of which two samples of 250 gms. each were separated and rest of the poppy husk was put into nine bags. They were separately sealed with the seal impression 'DS'. The recovered articles were taken into possession vide seizure-memo prepared at the spot. Further proceedings were taken for the registration of the case.

(3.) MR . K. S. Dhaliwal, the learned counsel for the petitioner has mainly challenged the offer made to the petitioner and the consent-memo. prepared at the spot on the ground that the offer of search is a partial officer. Inspector Devinder Singh, who had allegedly apprehended the petitioner simply informed the petitioner 'whether he wants to be searched by him or by some gazetted officer ? that if he owns (opts ?) to be searched by some gazetted officer, a gazetted officer can be called at the spot'. It is thus contended that the petitioner was not informed whether his search could be conducted before a Magistrate as well. Thus, it would amount to non-compliance of the provisions of section 50 of the Act. He has got two legitimate options i.e (i) to be searched in the presence of a Magistrate, or (ii) to be searched in the presence of a gazetted officer, as mentioned in section 42 of the Act. Thus, the fact that the petitioner was not informed of his right to be searched in the presence of the Magistrate, the entire search becomes illegal; therefore the petitioner is entitled to bail on this short ground. To support his argument, he has placed his reliance on the case reported as Jodha Singh v. State of Punjab, 1998(2) RCR(Crl.) 507 : 1998(2) RCC 43.