- (1.) P. K. Jain, J. In both of these bail applications common questions of law have been raised. Therefore, they are being disposed of by common order.
(2.) APPLICANT, Ashok Kumar Singh, was arrested by S. I. A. C. Sharma on 8-7-98 at about 7. 00 p. m. While the S. I. concerned was busy in investigating case Crime No. 215 of 1998 under Sections 381/406/411, I. P. C. , he was informed by the informer that two miscreants are standing in front of Tahsil building and are possessed of contraband Charas. On the pointing out of the informer he arrested the miscreants and asked them if they wanted to be searched in presence of a Gazetted Officer. They opted to be searched by the S. T. himself. One of the miscreants is applicant Ashok Kumar. From his personal search 150 grams of Charas was recovered. In other case Smt. Suraj Devi was arrested on 11-8-98 at about 7. 00 p. m. In this case also S. I. Ram Surat Singh Yadav was on vigilance duty. He received infor mation that a woman with contraband smack was coming. At the pointing out of the informer she was apprehended at about 7 p. m. She disclosed her name as Surja wife of Kishan Murari Yadav and informed the S. I. that she was possessed of smack. The S. I. informed her that she would be searched in presence of gazetted woman officer whereupon she opted not to go before the gazetted woman officer and produced before the S. I. a packet con taining 50 grams of smack. In both the cases while pressing the bail applications on behalf of the applicants a legal question is raised. It has been argued by the learned Counsel for the applicants that provisions of Section 50 have not been complied with and in sup port of their contention the learned Coun sel have relied upon a number of decisions of this Court as well as of the Apex Court. Learned Additional Government Advo cate Shri Upendra Shukla on the facts mentioned above, contended that there is sufficient compliance of the provisions of Sections 50 (1) and (4) of the Act and in support of his contention he has also relied upon two decisions of the Apex Court and one decision of this Court.
(3.) SECTION 50 reads as follows: 50. Conditions under which search of per sons shall be conducted- (1) When any officer duly authorised under SECTION 42 is about to search any person under the provisions of Sec tion 41, SECTION 42 or SECTION 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Of ficer of any of the department mentioned in SECTION 42or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred 10 in sub-section (1) (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. " Since in Section 50 it is mentioned that "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", the learned Coun sel argued that the offer made by the ar resting officer was only partial inasmuch as the accused were offered if they wanted to he searched in presence of a Gazetted Officer (in the ease of Smt. Surja Devi in presence of a female Gazetted Officer ). The submission is that the offer should have been if the accused wanted to be searched in presence of nearest Gazetted Officer or the nearest Magistrate and the accused had a choice to be searched in presence of either of such officers. This Court in a number of cases (Criminal Misc. Case No. 885 (B) of 1995, Munna v. State of U. P. , decided by a Single Judge of Luck-now Bench on 28-4-95, Criminal Misc. Case No. 3247 (B) of 1995 Pappu alias Dhodey v. The State of U. P. , decided by a Single Judge of the Lucknow Bench of this Court on 1-11-95 and Writ Petition No. 225 (H/c) of 1995, Parshu Ram Verma v. State of U. P. and others, decided by this Court on 8-11-95) held that the accused has a right to choose up be searched either before a Gazetted Officer or before a Magistrate and if an offer is made of being searched before a Magistrate only or a Gazetted Officer only, it is not sufficient compliance of Section 50 of the N. D. HS. Act. In yet another case of this Court, Nishan Singh v. State of U. P, 1995 (32) ACC 651; 1995 JICS52 (All),the only offer which was made to the accused was that the accused could get himself searched before a Gazetted Officer and it was not stated that he had an equal right to get himself searched before a Magistrate. Repelling the argument on behalf of the State that the Gazetted Officer includes a Magistrate, the Court had held that "had the legislature desired that the term Gazetted Officer would cover a Magistrate as well, there was no necessity to maintain the term Magistrate in Section 50. Nor mally, one should not interpret any word in a legislation as superfluous. Moreover, it was not any Gazetted Officer that was meant under Section 50 and under the interpretation of the Supreme Court, the accused had a right to choose his forum of search and it was the duty of the police officer to inform him of his right indicating both the forums. ";