A.N.Gupta, J. - (1.) ACCORDING to the F.I.R. S. I., G. N. Tewari, Station Officer G. R. P., Charbagh Lucknow received an intimation from an informant that on 11.12.94 one person will be carrying CHARAS in a bag by Kisan Express to Saharanpur. S.I., G. N. Tewari took with him Police Force and tried to obtain witnesses but persons present at the plate form did not agree to become witness and therefore, the police force after taking search of themselves, went towards parcel office where it was found that the applicant was coming with a bag. The informant pointed out that he was the same person and thereafter, the informant went away. S. I., G. N. Tewari arrested the applicant. When he was questioned whether he was In possession of Charas, after great persuasion and with an apology the applicant admitted that he was carrying Charas which he purchases from Muzaffarpur and sells it at Saharanpur. On being satisfied that the applicant was possessing Charas, S. I., Tewari sent another S.I., Sri Misra to the Police Station to call for the Circle Officer by Phone. On receiving telephonic information Sri A. N. Singh Deputy S. P. reached there and the Deputy Superintendent of Police took search of the applicant which revealed recovery of 1.5 kg. Charas regarding which other formalities like preparation of recovery memo etc. were completed and case was registered against the applicant under Crime Case No. 1066 of 1994 under Section 8/20 Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') P. S., G. R. P., Charbagh, Lucknow.
(2.) SRI I. Murtaza learned counsel for the applicant, argued that under Section 50 of the Act, it is the duty of arresting officer to inform the accused that he has a right to demand his search being made either in presence of Gazetted Officer or in presence of a Magistrate. For this purpose, he placed his reliance on a decision of Supreme Court given in the case of State of Punjab v. Balbir Singh, 1994 (3) SCC 299. He argued that the arresting officer, namely, S. 1., SRI G. N. Tewari did not inform the applicant that he had an option to demand search in presence of either a Gazetted Officer or a Magistrate and therefore, there was non-compliance of the provisions of Section 50 of the Act and as such, the applicant was entitled to bail. It was urged by learned Addl. Government Advocate Sri A. Matin that since in this case search was made by a Gazetted Officer himself, there was sufficient compliance of provisions of Section 50 of the Act. It is no doubt true that in this case search was made by a Gazetted Officer i.e. Deputy Superintendent of Police, but what is lacking in the case is that the arresting officer did not inform the applicant that he had a right to demand such search being taken either in presence of a Gazetted Officer or a Magistrate. The Supreme Court in its latest decision given in the case of Syed Mohd. Saiyad Umar Saiyad and others v. State of Gujarat. JT 1995 (3) SC 489, has held that the accused has a right to choose to be searched either before a Gazetted Officer or a Magistrate. Since the applicant had an option to demand search either before a Gazetted Officer or a Magistrate and as he was not informed that the applicant had such an option, it amounts to non-compliance of the provisions of Section 50 of the Act. In fact, the Supreme Court in the said decision of Syed Mohd's case has observed desirability of issuing instructions to all the investigating officers to take care to comply with the said statutory requirement so that the drugpaddlers do not go scot free due to non-compliance of the provisions of Section 50 of the Act. At the same time accused possessing drugs may avail the safeguard which law provides to them. In view of the above, the applicant is admitted to bail in Case Crime No. 1066 of 1994 under Section 8/20 N.D.P.S. Act, P. S., G. R. P., Charbagh, Lucknow, on his furnishing two sureties and a personal bond to the satisfaction of the C. J. M. Lucknow.
(3.) LET a copy of this order be sent to the Home Secretary, Government of U. P. and Director General of Police, U. P. for issuing directions to the Investigating Officers as observed by the Supreme Court.;