GORDHAN LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is a second bail application by the petitioner. Against him a case under Sec. 8/18 and Sec. 14 of the Narcotic Drugs and Psychotropic Substances Act has been registered The petitioner and one other person were coming out of the Ramganj Mandi Railway Station on 5-11-1988 and at that time constable Bhanwar Lal and cot stable Chandan Singh became suspicious and detained them to question them and then it was found that they had a bag containing opium, they were brought to the police station and then the FIR was lodged. According to the accused they were arrested by the constable, while the prosecution case is that they were arrested by the SHO police station Ramganj Mandi. When they were brought to the police station the opium was weighed and found to be 7 Kgs. and 720 gms.

(2.) The first contention of the learned counsel for the petitioner is that the arrest was made by unauthorised persons and on this basis the whole case falls to the ground and there is no purpose in detaining the accused So far as this question is concerned, it can be said that evidence will show as to who made the actual arrest, the SHO or the constables. If arrest was made by the SHO then the plea of the petitioner fails and at this stage a finding cannot be given that arrest was made by unauthorised person.

(3.) The next contention of the learned counsel for the petitioner is that Sec. 50 of the NDPS Act has given a right that the accused should be asked whether they want to take themselves to a Gazetted Officer or a nearest Magistrate and if this provision is not complied with then the trial stands vitiated. It is also contended that it is not for the accused to make this request but it is for the person making a search to tell the accused about his rights and give him an option whether he requires to be taken to a Gazetted Officer or to a Magistrate. Reliance has been placed on Biram and anr. Vs. State of Rajasthan (1988 R.C.C. 556 ), wherein it has been held that when the officer taking search did not ask the accused to be taken before the nearest Magistra e then the mandatory provision of Sec. 50 of the NDPS Act did not stand fulfilled. On this ground and also for the non-compliance of Sec. 57 of the NDPS Act the accused were acquitted.