ANGREJ SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner is a truck driver. On 12.11.91, 150 bags were loaded in his truck from Indore and the description given in the goods receipt issued by M/s. Laxmi Oil Products Limited Vishva Nagar, District Kharrgon Madhya Pradesh showed that the bags contained animal food. According to the petitioner he was not knowing what was in the bags and he did not check the contents of the same. At the octroi post near Deoli when his truck was checked it was found that the bags contained poppy straw powder. The accused was asked whether he wanted to be checked in the presence of a Magistrate or a Gazetted Officer, but he agreed for the checking by Shri Sheo Narain Inspector Narcotics who was on duty at the relevant place. After investigation a complaint was submitted before the Additional Munsif and Judicial Magistrate, Tonk. His bail application before the trial court was pressed on the ground that he was not in conscious possession of any Narcotic drugs, but his plea was not accepted. Now he has approached this court.

(2.) It has been contended on behalf of the petitioner that being an Illiterate person and only a driver, the petitioner could not have known as to what was in the bags and he in good faith took them in is truck and he cannot be said to be guilty of any offences under the NDPS Act. It has been contended that the provisions of section 50 of the Act have not been complied with. It is contended that only as a formality it is recorded that the person was asked whether he wished to get a search conducted by a Magistrate, or a Gazetted Officer and actually this choice was not made available to him. It is also contended that the power of search can be exercised only after the competent person has reason to believe that a search warrant cannot be obtained without affording an opportunity for the concealment of evidence or facility of the Escape of the offender and the officer has to record his information in writing or record the grounds for his belief and send a copy of the same to his immediate official superior. Non compliance of section 52 A, 55 and 57 of the Act have also been mentioned in the application. The learned counsel for the petitioner has also contended that samples were taken only from two bags and this report could not be made applicable to all the bags and the report of the FSL which has not been received so far cannot be made applicable to all the 150 bags. Referring to section 53 A of the NDPS Act it is contended that it is not similar to section 108 of the Customs Act and the statement of the accused is not admissible in evidence.

(3.) The learned Public Prosecutor has contended that the provisions for grant of bail are very strict and the circumstances in the present case do not justify the grant of bail. According to him the person to be searched can be taken to a Magistrate or a Gazetted Officer, only if he so desires, and when the accused did not make any such desire then the proceedings are not vitiated. Sec. 37 of the Act reads as under: