K.C.GUPTA, J. - (1.) PURAN Singh has filed this petition for regular bail under Section 439 Cr.P.C. in FIR No. 255 dated 23.4.2001 under Section 18 of the NDPS Act registered at Police Station Panipat.
(2.) BRIEFLY stated, the facts are that on 23.4.2001, Dhian Singh, Inspector, CIA Staff alongwith other police officials was present in a Government jeep near the outer gate of Bus Stand, Panipat. Balbir Singh, Head Constable No. 99 was driving the jeep. The petitioner was seen coming out of the bus stand and on seeing the police party he became perplexed and turned his back swiftly. However, he was apprehended on suspicion. He was served with a notice under Section 50 of the Act and was given an offer to get himself searched in the presence of some Gazetted Officer or a Magistrate. However, he elected to get himself searched in the presence of Magistrate. Consequently, Kewal Krishan Amrohi, District Revenue Officer, Panipat, was called and in his presence the bag, which the petitioner was carrying, was searched. On search, it was found to contain opium. 50 grams of opium was taken out as sample and the remaining on weighment was found to be 1 kg. and 950 grams. The sample packet and the remaining opium were made into separate sealed parcels and were sealed with the seal of DS. The seal after use was handed over to Chander Mohan, ASI. The articles were taken into possession vide memo attested by the witnesses. Both these packets were also sealed with the seal of KK D.R.O. The petitioner was apprehended. I have heard Sh. Namit Sharma, counsel for the petitioner, Mr. Sidharth Sarup, AAG, Haryana, for the State and carefully gone through the file.
(3.) COUNSEL for the petitioner contended that there is non-compliance with Section 50 of the Act inasmuch as the petitioner had elected to get himself searched in the presence of Magistrate but he was searched only in the presence of Sh. Kewal Krishan, District Revenue Officer, who was not the Magistrate. It is true that no notification has been produced by the prosecution inspite of adjournments given to show that at the time of alleged recovery, Sh. Kewal Krishan was acting as the Executive Magistrate. The learned State Counsel contended that it was not necessary for the police to call the Magistrate and it was enough that the petitioner was searched in the presence of some senior officer. For this contention, he placed reliance upon the authority of Supreme Court Raghbir Singh v. State of Haryana, 1999(1) RCR(Crl.) 573, which supported the above contention of the learned counsel. Para Nos. 8 to 11 of the said judgment read as under :- "8. The very question that is referred to us came to be considered by a Bench of two learned Judges on 22nd January, 1996 in Criminal M.P. No. 138 of 1996 in SLP (Crl.) No. 184 of 1996 Manohar Lal v. State of Rajasthan. One of us (Verma, J.) speaking for the Bench held (Para 2) : "It is clear from Section 50 of the NDPS 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 available Gazetted Officer or the nearest available Magistrate. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused." 9. We concur with the view taken in Manohar Lal's case. 10. Finding a person to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to severe punishment. It is, therefore, that the Act affords the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate, depending upon who is conveniently available. 11. 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 it in the presence of whoever is the most conveniently available Gazetted Officer or Magistrate. ;