- (1.) S. R. Singh, J. This application for bail under Section 439 Cr. PC. arises out of case Crime No. 129 of 1996 under Section 8/20 of the Narcotic Drugs and Psycho-Tropic Substances Act, 1985 (in short 'the Act) registered at police station G. R. P. /pravartan Dal Abkari Vibhag, Dis trict Gorakhpur. Recovery memo shows that the applicant was standing near 'sid-hiwala Pur with a bag at railway plat-form No. 1, G. R. P. Gorakhpur on 23-5-1996 at 9. 30 p. m. He was apprehended and, in search, found in possession of 10. 500 Kgs. of charas contained in the bag but failed to produce any valid authority for possession there of.
(2.) SRI Wasim Alam, learned counsel appearing for the applicant pressed for bail on the ground that search, seizure and arrest were made in violation of the provisions of Section 50 of the Act. The Learned counsel urged that the applicant had statutory right of being searched in presence of a Gazetted Officer or Magistrate, but the applicant was not taken to a Magistrate for search even though it was so desired by him in answer to the question whether he wanted to be sear ched in presence of Gazetted Officer or Magistrate. Learned counsel for the ap plicant placed reliance on a Single Judge decision of this Court in Munna v. State of U. P. 1996 U. P. Cri. Rulings, 585 : 1996 JIC 902 (All) SRI Sudhir Mehrotra, learned Ad ditional Government Advocate refuted the submissions made by the learned Counsel for the applicant and urged that the search was made in the presence of a Gazetted Officer of one of the departments men tioned in Section 42 of the Act and there fore, it was not necessary for the officer conducting the search to take the applicant to a Magistrate. Learned Additional Government Advocate placed reliance upon the latest Supreme Court decision in Raghubir Singh v. State of Hariyana, 1996 SCC (Cri) 266:1996 JIC 734 (SC ). Having heard counsel for the parties and having given by anxious consideration to the submissions aforementioned, I am of the view that the search in the instant case has not been made in violation of Section 50 of the Act. The option available to the suspect is to choose between the officer con cerned and a Gazetted Officer or a Magistrate for the purpose of search and seizure. The suspect has no right, under Section 50 of the Act, to make a choice between the Gazetted Officer and the Magistrate. That right appears to be with the officer apprehending the suspect as is evident from the expression "take such per son without unnecessary delay to the nearest gazetted officer of any of the depart ments mentioned in Section 42 of the Act or to the nearest Magistrate" used in Section 50. The search made in presence of a Gazetted Officer of any of the departments mentioned in Section 42 of the Act would not be vitiated merely because it was not made before a Magistrate as desired by the suspect/accused for no such right is con ferred upon the suspect/accused under Sec tion 50 of the Act. In Manoharlalv. State of Rajasthan, JT1996 (1) SC 480:1996 JIC 358 (SC), the Supreme Court has held as under: "the provisions only requires the option to be given to the accused to say whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate; and on exercise of that option by the accused, it is for the officer con cerned to have the search made in presence of the nearest Gazetted Officer or the nearest Magistrate whosoever is conveniently available for the purpose in order to avoid undue delay in completion of that exercise. It is clear from Sec tion 50 of the N. D. P. S. Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer taking the search or in the presence of the nearest avail able Gazetted Officer or the nearest available Magistrate. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exer cised by the officer making the search and not by the accused. "
(3.) THE aforesaid view expressed in Manohar Lal (supra) was affirmed by the Supreme Court in Raghubir Singh v. State of Haryana (supra) wherein it was ruled as under: "the option under Section 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. THEre is no further option of being searched in the presence of either a Gazetted Officer or of being searched, in the presence of a Magistrate. THE use of the word 'nearest' in Section 50 is relevant. THE search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whosoever is the most conveniently available, Gazetted Officer or Magistrate. " The-coritrary view taken in Munna v. State of U. P. (supra); Manak-Chand Jain v. State, 1995. Cri. L. J. 3146 - (Delhi High Court) v. Laxman Jena v. State of Orissa, 1995 Cri. L. J. 2993 (Orissa High Court) ; Criminal Misc. Case No. 3196 (b) of 1995, Prabhat Kumar v. . State, decided on 1-11-1995 ; Writ Petition No. 225 (H/c) of 1995, Parasu Ram Verma v: State of U. P. and others decided by a Division Bench of this Court on 8-11-1995 does not hold the field (sic) in view of the Supreme Court decision aforementioned.;