VIJAY KUMAR VERMA, J. - (1.) IN this bail application, prayer for bail has been made on behalf of accused applicant Ram Sajiwan @ Chela, s/o Vindeshwari Pasi in case Crime No. 281 of 2008, under section 21/22 NDPS Act, P.S Pipari, District Kaushambi.
(2.) ACCORDING to the FIR lodged on 21.11.2008 at P.S. Pipari, District Kaushambi, the allegations, in brief, are that on 21.11.2008 during the course of checking the vehicles and suspected persons by SI Shail Kumar Singh, accompanying with other police personnel, the applicant - accused Ram Sajiwan was apprehended on suspicion at about 7.00 p.m. and on his personal search about 850 gm. intoxicating powder was recovered from his pockets in two plastic polythene. The seized intoxicating powder on examination in Forensic Science Laboratory Varanasi was found Diazepam vide report dated 20.02.2009 (Annexure SCA -1 to the supplementary counter affidavit dated 7th April 2009). I have Heard arguments of Sri Shamsher Singh Advocate, appearing for the applicant and AGA for the State at length and perused the entire record carefully.
(3.) THE main submission made by the learned counsel for the applicant in support of the bail application was that compliance of Section 50 NDPS Act was not made in this case and hence, the applicant is entitled to be released on bail on this ground alone. It was submitted in this context by the learned counsel that option to the accused to get him searched before the Magistrate or gazetted officer was given after making his search by the arresting officer himself, whereas it was obligatory for the arresting officer to give option to the accused to get him searched before Magistrate or gazetted officer prior to making his search. In support of this submission, my attention has been drawn towards certain decisions of Hon'ble Apex Court including the decision of Constitutional Bench in State of Punjab vs. Baldev Singh 1999 (39) ACC 349.;