- (1.) M. L. Singhal, J. The applicant Dharmendra Gupta has applied for bail in Case Crime No. 99 of 1997, under Sec tions 20/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (here inafter referred to as the N. D. P. S. Act), P. S. Najirabad, District Kanpur Nagar. I have heard the learned Counsel for the accused-applicant and U. N. Shukla the learned Additional Government Advocate.
(2.) THE prosecution version as embed ded in the FIR is that one Dinesh Kumar Sishodia, Inspector along with certain po lice officials on 23-4-1997 while on pa trolling duty, were standing on Mariyampur cross- road in Kanpur City, at that very time Shri Shrikant Singh, Circle Officer, Najirabad along with the other police of ficials came on jeep, it was about 7. 20 p. m. All of them were having conversation amongst themselves. At about 7. 30 p. m. , a person came on a motor cycle and in formed that a person coming behind on a scooter was a man of suspicious character, his search be taken and thereafter disap peared. All the police officials became cautious, took the search inter se and nothing was found objectionable and en deavour was made to call public witnesses but none of them was available. Within five minutes a person came on the scooter, who was stopped. On interrogation he disclosed his name as Dharmendra Gupta-accused-applicant. Search of the accused-applicant was taken, in the 'diggi' under the seat of the scooter, in a bag of polythene kept in a steel tiffin, about 260 gms brown sugar was recovered from the possession of the accused. THE accused-applicant disclosed that the article recovered was brown sugar, weighed 260 gms. On this the accused-applicant was informed that in the police party Circle Officer, Najirabad a police officer was also present and the search of the accused-applicant was being taken in the presence of the Circle Officer. Further a sum of Rs. 5,ooo/-was recovered from the possession of the accused, which the accused said to have collected from the sale of the brown sugar. THEreafter the necessary formalities regarding the sealing of the recovered goods were performed. The learned Counsel for the ac cused-applicant vehemently argued that as revealed by the aforesaid contents of the FIR itself, there is no compliance of the provisions of Section 50 of the N. D. P. S. Act. As reproduced above in the first in stance, the recovery of the brown sugar was made from the possession of the ac cused and only thereafter the accused was informed that in the police party Circle Officer-a Gazetted Officer was also pres ent and the search was being taken in his presence. The provisions of Section 50 of the N. D. P. S. Act-mandatory provision repeatedly held by the Hon'ble Supreme Court having been violated, the accused applicant is entitled to bail. Even the pres ence of the Gazetted officer in the search ing party is not sufficient, the accused-applicant must have been told about his right. The learned Counsel in support of his contention relied upon the decision of the Hon'ble Supreme Court in State of Punjab v. Balbir Singh, 1995 JIC 382 (SC); Punjab and Haryana High Court in Shyam Lal v. State of Haryana, 1996 (2) EFR 578 and of Patna High Court in Rajendra Kumar v. State of Bihar, 1996 (2) EFR 9. The contentions advanced by the learned A. G. A. are that there is sufficient compliance of provisions of Section 50 of the N. D. P. S. Act in this case inasmuch as a Gazetted Officer, namely, Circle Officer was present on the spot and in his pres ence the search was conducted. The sus pect has no right to make a choice between the Gazetted Officer and the Magistrate. Further the provisions of Section 37 of the N. D. P. S. Act operate in the case, the ac cused-applicant in view of the having re covery made from his possession is not entitled to the bail prayed for. In support of his contentions the learned A. G. A. re lied upon the decision of the Supreme Court in Manohar Lal v. State of Rajasthan, 1996 (33) ACC 257 (SC) and of this Court, rendered in Gyasuddin v. State of U. P. , 1997 (34) ACC 714 and in Zakir Husain v. State. 1997 JIC 1086 (A11 ).
(3.) IN State of Punjab v. Balbir Singh (supra), with regard to the compliance of the provisions of Section 50 of the N. D. P. S. Act the Supreme Court held : "section 50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so re quires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an impor tant safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. The legislature while keeping in view the menace of illicit drug trafficking deemed it fit to pro vide for corresponding safeguards to check the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricat ing by the prosecution, Section 50 is enacted. When such is the importance of a right given to an accused person in custody in general, the right by way of safegaurd conferred under Sec tion 50 in the context is all the more important and valuable. Therefore, it is to be taken as an imperative requirement on the part of the offi cer intending to search. It must, therefore, be held that on prior information the empowered officer or authorised officer while acting under Section 41 (2) or Section 42 should comply with provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magis trate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. The provisions of Section 50 are thus mandatory. " In Rajendra Kumar v. State of Bi har (supra), another case relied upon by the learned counsel for the applicant the Division Bench of Patna High Court ob served that the requirement of Section 50 of the N. D. P. S. Act of informing the ac cused about his right to get his search con ducted before a Gazetted Officer or a Magistrate is mandatory. The mere fact that a Gazetted Officer was present and the search was conducted is not sufficient information about the right must be given to the accused by the raiding party. The learned Counsel for the applicant vehe mently contended that in the present case the search was conducted first, the recov ery was made and thereafter the accused was apprised that the Circle Officer-a Gazetted Officer was also present on the spot and the search was bieng made in his presence. In another case Sham Lal v. State of Haryana (supra) relied upon by the learned Counsel for the applicant, the facts were almost similar. In that case also the accused was not informed about his right to get search conducted in the pres ence of a Gazetted Officer/magistrate, the plea of the prosecution that the search was conducted in the presence of Dy. S. P. , a Gazetted Officer who happened to arrive on the spot was not accepted. It was held by the Court that the provisions of Section 50 of the N. D. P. S. Act were not complied with and as such the accused was entitled to bail.;