- (1.) RAVINDRA Singh, J. Heard Shri Brijesh Sahai, Sri R. C. Pandey and Sri Jagdish Singh Sengar learned Counsel for the applicant and learned A. G. A.
(2.) THIS application is filed by the applicant Rahul Singhal with a prayer that he may be released on bail in Case Crime No. 100 of 2005, under Sections 18/20 of the N. D. P. S. Act, P. S. Bhojpur District Ghaziabad. From the perusal of the record, it reveals that in the present case the F. I. R. was lodged by SI Anuradha Singhal, at P. S. Bhojpur on 20-2-2005 at 7. 00 p. m. in respect of the incident which had occurred on 20-2- 2005 at about 3. 15 p. m. According to prosecution version the first informant alongwith some other police personnel saw that two boys were coming from Industrial Road. They turned back and started running after seeing the police party, but they were arrested at about 3. 15 p. m. on 20-2-2005. They disclosed their names as Anu Bharadwaj and Rahul Singhal the present applicant. They disclosed that they possessing 1/2 kg heroin each. Both the accused persons were asked by the arresting officer that whether they want to be searched before any Gazetted Officer or Magistrate, but they refused and stated that they might be searched by the first informant and others. The first informant made an attempt to arrange public witness, but nobody was ready to become witness. The search of the applicant and other co-accused persons was made. From the possession of co-accused Anu Bhardwaj 1/2 heroin was recovered from the right pocket of the jacket and from the possession of the applicant also 1/2 kg heroin was recovered which was kept in a polythene from his shirt. For the purposes of the sample 10 grams from each recovered heroin was taken and it was sealed in different match boxes. Thereafter, the F. I. R. was lodged at the police station concerned.
(3.) IT is contended by the learned Counsel for the applicant that there is no compliance of Section 50 of the N. D. P. S. Act, because it has not been specifically informed by the arresting officer to the applicant that it was his right to be searched before the Magistrate or any Gazetted Officer. The failure to do so would cause prejudice to the applicant, the mere saying that whether the applicant wanted to be searched in the presence of Gazetted Officer or Magistrate is not sufficient. In support of this argument three cases of the apex Court as Vinod v. State of Maharashtra, 2003 SCC (Crl) 14 ; K. Mohanan v. State of Kerala, 2000 SCC (Crl) 1228 and State of Punjab v. Baldeo Singh, 1999 (1) JIC 421 (SC) : 1999 SCC (Crl) 1080, have been cited by the learned Counsel for the applicant. It is replied by the learned A. G. A. by submitting that in the present case there is compliance of Section 50 of the N. D. P. S. Act, because before taking the search of the applicant and other co-accused persons the offer was placed by the arresting officer before the applicant and other co-accused person to give search before any Gazetted Officer or Magistrate but they refused and stated that their search may be taken by the arresting officer because they were having reliance upon him. It is further contended that for compliance of Section 50 of the N. D. P. S. Act there is no specific form prescribed or intended for conveying the information required to be given under Section 50 of the N. D. P. S. Act, but it is necessary that the accused should be made aware of the existence of his right to be searched in presence of any Gazetted Officer or Magistrate. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation and the requirement of Section 50 of the N. D. P. S. Act is to be decided on the facts of each case and there cannot be any facts of each case and there cannot be any sweeping generalization and/or strait-jacked formula.;