- (1.) K. C. Bhargava, J. This bail application moved by Dashrath Lal raises certain questions at the stage of bail. Heard learned counsel for the applicant as well as learned Additional Government Advocate.
(2.) THE first contention of the learned counsel for the applicant is that compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as the Act) with respect to the recovery has not been made. Secondly, it is argued that the weight of the articles recovered has not been written in the recovery memo and lastly that no independent public witness was taken at the time of recovery. Taking the first point it has been argued by the learned counsel for the applicant that the provisions of Section 50 of the Act are mandatory in nature and they have to be followed and non-observance of these provisions can be a ground for bail. It cannot be denied at this stage that the fact which raises a question about the validity of the search can be locked into at the stage of bail and bail can be granted to a person is mandatory provisions of law have not been complied with. It cannot be said that if madatory provisions of law have not been complied with then bail cannot been denied. Therefore keeping in view the above question I go through the grounds which have been taken by the learned counsel for the applicant for grant of bail. In the present case a recovery memo was prepared on 7-6- 1992. The Station Officer received information it in the informant that the one person is standing along- with the stack of 'posta' stored on a bicycle. The Station Officer went there and saw a person standing in front of the house of Nokhey Baniya. He wanted to run away but was apprehended and disclosed his name as Dashrath Lal, the applicant in the present case. Thereafter the search was taken. Sec tion 50 (1) of the Act is relevant in the present case. For the sake of convenience this sub-section is reported below: "50. Conditions under which search, of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. " A bare perusal of this section will go to show that if a search is taken under the provisions of Sections 41, 42 or 43 of the Act and if the person searched so require then he shall be taken without necessary delay to the nearest Gazetted Officer of any department mentioned in Section 42 or to the nearest Magistrate. Thus certain conditions have been imposed on the officer who is making search under Section 41, 42 or 43 of the Act to make search in the presence of the Gazetted Offier so designated or before the nearest Magistrate. The object of taking search before the Gazetted Officer or Magistrate is that the police may not get a free hand to irrplicate any person under this Act at their own sweet-will. Therefore this provision which is mandatory in nature should be complied with strictly because stringent condi tions have been imposed under this Act if a person is found guilty of an offence punishable under this Act. Minimum sentence and fine have been provided under this Act. Therefore in order to safeguard the interest of the accused the provisions of search before the Gazetted Officer or the Magistrate have been incorporated by the legislature and the intention of the legislature is clear from the reading of this section.
(3.) LEARNED counsel for the applicant has argued that the words "if such person so requires" will mean that the Police Officer making search has to inform the person who was arrested that he can demand as of right that this search can be taken before a designated Gazetted Officer or a Magistrate. On the other hand learned Additional Government Advocate has argued that the words do not mean that the Police Officer has to inform the person con cerned that he has right to be searched before a designated Gazetted Officer or a Magistrate. According to him if a request is made by the person so arrested then the police is obliged to take his search in the presence of a Gazetted Officer or a Magistrate. No doubt, it is true that the words used are that "if such person so requires" which according to prosecution indicate that a request has to come from the side of the accused applicant. It is common knowledge that in India the villagers and the persons who are engaged as cobblers, labourers, agriculturists or in similar professions rre not aware of their rights and the intricacies and necessities of law. These provisions have been incorporated under Section 50 of the Act for the protection of the persons arrested and it becomes the duty of the Police Officer making arrest to inform such a person that he has a right to be searched in the presence of a designated Gazetted Officer or a Magistrate. Therefore making in view of the intention of the legislature and the provisions of the Act which provide greater punishment for the offences under the Act, the reasonable construction which can be put on these words will be that a person who is going to be searched should be told by the Police Officer that he has a right to be searched before a designated Gazetted Officer or a Magistrate. The Police Officer cannot take shelter behind the plea that a request should come from the person who was arrested, As mentioned in the earlier part of this judgment a person who does not know about his rights of being searched before a designated Gazetted Officer or a Magistrate how can he make a request to be so searched. Therefore the provisions which are meant for safeguarding the interest of the citizens have to be strictly complied with and it is the duty of the Police Officer to inform the person so arrested about his right to be searched before a designated Gazet ted Officer or a Magistrate. On this question the learned Additional Govern ment Advocate has placed reliance on certain cases which are as under: (1) Surajmal Kanaiya Lal Soni v. State of Gajarat, 1991 Cr LJ 1483 (Guj ). (2) Rekha Parmeshwari alias Gnanmbigal Muthiah v. Assistant Collector of Customs, 1992 Cr LJ 901 (Mad ). (3) Wilfred Joseph Dawood Lema v. State of Mah. , 1990 Cr LJ 1034 (Bom) In all these cases it was held that the police officer taking a search is not duty bound to inform the person so searched that he 'has a right to be searched in the presence of a designated Gazetted Officer or a Magistrate. 5. On the other hand learnd counsel for the applicant has placed reliance on the following cases: (1) Salamatali v. State,1991 Cr LJ 1991 (MP ). (2) Sewa Ram and Rajuwa v. State, 1992 JIC 492: 1992 LLJ 191 (All ). (3) Bhanu Pratap v. State, 1992 Luck LJ 244: 1992 LCR 115. In all these cases it was held while dealing with the bail application that it is the duty of the police officer who is making a search to inform the person so arrested that he has a right to be searched in the presence of a designated Gazetted Officer or a Magistrate. Therefore after considering the cases referred to by the learned counsel for the parties, I find myself in agreement with the view expresed in the authorities citid by the learned counsel for the applicant that the right which is invited on a person to be searched before a designated Gazetted Officer or Magistrate should be told to him at the very inception when his search is going to be taken. Thus a person so arrested should be informed that he has a right to be searched in the presence-of a designated Gazetted Officer or a Magistrate. This requirement of law is mandatory and cannot be said to be directory and non-compliance of the same can be a ground for bail in such cases. It has further been argued by the learned counsel for the State that the provisions of Section 437 of the Code of Criminal Procedure do not apply under this Act in the matter of grant of bail and the bail is regulated by the provisions of Section 37 of the Act. No doubt, it is clear that in view of the specific provisions of Section 37 of the Act, the general provisions of the Code of Criminal Procedure regulating the bail will not apply and the bail his to be considered in such cases under the provisions of Section 37 of the Act. Section 37 of the Act provides that no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless: (i) the Public Prosecutor has been given an opportunity to oppose the application for such release and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.;