RAJENDER KUMAR RATNA Vs. STATE OF HIMACHAL PRADESH
HIGH COURT OF HIMACHAL PRADESH
RAJENDER KUMAR RATNA
STATE OF HIMACHAL PRADESH-
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Kamlesh Sharma, J. -
(1.) The petitioner is accused of an offence under Sec. 37 of Narcotic Drugs and Psychotropic Substances Act (hereinafter called the ActTT) as he was caught by the Police while carrying 500 gms. Charas. He was arrested on 23.4.1991 and is presently lodged in Judicial custody He moved a bail application before the Sessions Judge, Mandi, Kullu and Lahaul & Spiti Districts at Mandi, which has been rejected vide order dated 29 .4.1991. Now, the petitioner has approached this Court for releasing him on bail.
(2.) I have heard the learned counsel for the Parties and gone (through the Police file. Sh. Inder Singh, learned counsel for the petitioner, has vehemently that while considering an application for this Court has to find out whether there are reasonable grounds for believing that the petitioner is not guilty of an offence of which he has been accused. According to him, unless it appeals from the Police record that prima facie the provisions of Sections 50(1) 52(1) and 57 of the Act have been complied with, this Court cannot reasonably believe that the petitioner is guilty of an offence under the Act. Admittedly, these provision have been declared mandatory by a Division Bench of this court in (Gabriel, Holder of Pass Port No. 598311, Austrial National presently lodged in Central Jail Nahan, District Sirmour, Himachal Pradesh v. The State of Himachal Pradesh).1 On the other hand, Sh. Ram Murti, learned law Officer, submits that at the stage of granting bail, this aspect of the matter cannot be looked into.
(3.) I find substance in the submission of Sh. Inder Singh, learned counsel for the petitioner, as the provisions of Sections 50,52 and 57 of the Act are required to be complied with at the time of search and arrest of the accused person and the Police file must contain some evidence thereof. Under Sec.50(1)the Act, the designated officer is required to inform the person intended to be searched about his right to be taken without unnecessary delay to the nearest gazetted office of any department mentioned in Sec. 42 or to the nearest Magistrate for conducting his search in the presence of gazetted officer or the Magistrate. It has been mentioned in the FIR itself and the statement under Sec. 161 Cr.P.C. of Sh. Chuni Lal that when the petitioner was apprehended, the designated officer, that is, the Head Constable had asked him whether he wanted to be searched by a gazetted officer or by him. The petitioner gave his consent to be searched by the Head Constable. In view of this, it cannot be said that Sec. 50 of the Act was not complied with.;
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