MOHINI KAPUR, J. - (1.) THE petitioner is a truck driver. On 12. 11. 91, 150 bags were loaded in his truck from Indore and the description given in the goods receipt issued by M/s. Laxmi Oil Products Limited, Vishva Nagar, District Kharrgon Madhya Pradesh showed that the bags contained animal food. According to the petitioner he was not knowing what was in the bags and he did not check the contents of the same. At the octroi post near Deoli when his truck was checked it was found that the bags contained poppy straw powder. THE accused was asked whether he wanted to be checked in the presence of a Magistrate or a Gazetted Officer but he agreed for the checking by Shri Sheo Narain Inspector, Narcotics who was on duty at the relevant place. After investigation a complaint was submitted before the Additional Munsifand Judicial Magistrate, Tonk. His bail application before the trial court was pressed on the ground that he was not in conscious possession of any Narcotic drugs, but his plea was not accepted. Now he has approached this court.
(2.) IT has been contended on behalf of the petitioner that being an illiterate person and only a driver, the petitioner could not have known as to what was in the bags and he in good faith took them in his truck and he cannot be said to be guilty of any offences under the NDPS Act. IT has been contended that the provisons of section 50 of the Act have not been complied with. IT is contended that only as a formality it is recorded that the person was asked whether he wished to get a search conducted by a Magistrate, or a Gazetted Officer and actually this choice was not made available to him. IT is also contended that the power of search can be exercised only after the competent person has reason to believe that a search warrant cannot be obtained without affording an opportunity for the concealment Of evidence or facility of the escape of the offender and the officer has to record his information in writing or record the grounds for his belief and send a copy of the same to his immediate official superior. Non compliance of section 52 A, 55 and 57 of the Act have also been mentioned in the application. The learned counsel for the petitioner has also contended that samples were taken only from two bags and this report could not be made applicable to all the bags and the report of the FSL which has not been received so far cannot be made applicable to all the 150 bags. Referring to section 53 A of the NDPS Act it is contended that it is not similar to section 108 of the Customs Act and the statement of the accused is not admissible in evidence. The learned Public Prosecutor has contended that the provisions for grant of bail are very strict and the circumstances in the present case do not justify the grant of bail. According to him the person to be searched can be taken to a Magistrate or a Gazetted Officer, only if he so desires, and when the accused did not make any such desire then the proceedings are not vitiated. Section 37 of the Act reads as under : 37. Offences to be cognizable and non-cognizable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless - (i) 'he Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on the granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting bail. " The rulings cited by the Petitioner's counsel may be looked into first. In 1990 (1) R. C. C. 168 (l)it was held that when legal infirmities have been pointed out on the basis of which it could be said that the petitioner has made out an arguable case then considering the circumstances the petitioner can be released on bail. The allegation in this case was that section 50 of the Act had not been complied with. In 1992 RCC 241 (2) the petitioner was a boy of 17 years and the prosecution had also admitted that there was no compliance of sections 42, 50 and 57 of the Act. In view of this, bail was granted. In 1992 (1) Crimes, 537 (3) in an appeal from conviction the appellant was acquitted on a number of grounds namely that the person who had recovered contraband charas was himself the Investigating Officer. 1990 Cr L. R. (Raj.) 54 (4) and another decision on page 149 are also to the same effect. In 1989 Cr. L. R. (Raj.) 115 (5) the accused were acquitted when there was non compliance of sec, 50 & there was no evidence that the seals remained intact and the report of seizure and arrest was not immediately sent to the superior officer. Now it is a settled law that the person has to be informed about his right to get himself searched before a Magistrate or a Gazetted Officer and he has to be asked whether he desirous to be searehed by any of these officers. Other citations are that in cases of six quintal poppy husks and 15 gms of smack bail was granted when the FSL report was not received for six months. In AIR 1991 SC 45 (6) the question arose whether the officers invested under section 53 of the Act were Police Officers within the meaning of section 25 of the Evidence Act. Referring to the provisions of the Act it was held that persons on whom only some of the powers exercised by the police are conferred cannot be police officers for purposes of section 25 of the Evidence Act. An officer authorised under section 53 of the Act is not entitled to exercise all the powers under Chapter XII of the Cr. P. C. including the power to submit report or the charge sheet under section 173 of the Cr. P. C. The Officer authorised under section 53 of the Act only makes a formal complaint and such a complaint would be under section 190 of the Criminal Procedure Code and this would be not by a police officer. The confessional statements made before an officer invested with powers under section 53 of the Act was not a confession before the police officer and therefore admissible in evidence.
(3.) THE cases relied upon by the prosecution are as follows. In 1990 (2) Cr. L. J. 901 (7) a woman passenger was proceeding on flight from Madras to Colombo and the lady security officer while frisking her found that something was kept concealed on her person and on being searehed in the toilet, 500 gms of brown sugar was found on her person. The contention was that the person was not given the choice to get searched before the Gazetted Officer or a Magistrate, and there was non compliance of section 50 and 42 of the Act. This plea was rejected holding that the woman security officer who searched and recovered contraband articles from the possession of the petitioner was not an officer empowered by the Government under section 42 of the Act. When this search was made the security officer was completely oblivious of the possession of any Narcotic drugs or psychotrophic substance by the accused and the prosecution would not be vitiated when the security officer was not empowered under section 42 of the Act. In regard to the provisions of section 50 it was never stated that there was no evidence showing that the accused had made a request to be taken to a nearest Gazetted Officer or Magistrate. In 1989 Cr. L. J. 1559 (8) Delhi High Court laid down that incases under the NDPS Act normally bail should not be granted. When the opium recovered was one kilogram, bail was refused even when the accused had remained on interim bail. ;