Ajit Singh Vs. Delhi Administration

Ajit Singh vs Delhi Administration

Type Court Judgment Court Delhi Decided Jul 17, 1992

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Citation: sooperkanoon.com/699653
Court: Delhi High Court
Judge: Usha Mehra, J.
Decided On: Jul 17, 1992
Case Number: Criminal Miscellaneous (Main) Appeal No. 1744 of 1992
Subject: Narcotics;Criminal

Case Summary

AI-generated summary - not the official court judgment text.

Narcotic Drugs and Psyche-tropics Substances Act, 1985 - Section 17/50/42. Recovery of 600 gins opium. Evidence recorded. Petitioner not given offer to be searched by Gazetted Officer or Magistrate. Mere fact that ACP gazetted officer not sufficient compliance of section 50. Legislature's intention for having search...

Key legal issue: Narcotics;Criminal
Acts & sections: Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 17

Parties & Advocates

Appellant / Petitioner

Ajit Singh

Advocate P.P. Grover and; B.K. Sharma, Advs

Respondent

Delhi Administration

Legal References

Acts: Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 17
Reported In: 1992(2)Crimes1152; 1992(24)DRJ163

Excerpt

narcotic drugs and psyche-tropics substances act, 1985 - section 17/50/42. recovery of 600 gins opium. evidence recorded. petitioner not given offer to be searched by gazetted officer or magistrate. mere fact that acp gazetted officer not sufficient compliance of section 50. legislature's intention for having search conducted in presence of gazetted officer or magistrate was to ensure fair search in presence of responsible officer or magistrate was to ensure fair search in presence of responsible officer. petitioner cannot be allowed bail because he was not given offer to be searched by magistrate. bail on merits fail. request for interim bail on account of illness of petitioner's wife. patitioner earlier granted interim bail. not misused. petitioner admitted to interim bail for two months. ; the legislature's intention for having the search been conducted in the presence of a gazetted officer or magistrate was to ensure fair search in the presence of a responsible officer. now, whether this was sufficient or not is a question to be gone in to on merits but prima facie. i do not consider that since the offer to take the accused to a magistrate was not given, thereforee petitioner should be allowed bail. these are the points which will be gone into on merits after the evidence is concluded. so far only two witnesses have been examined, copies of which statements have been produced by the petitioner inspector rajinder singh has stated that the personal search of he petitioner was not conducted in his presence. the memo that the petitioner should be produced before the magistrate was not made but this will require interpretation after other evidence is recorded. thereforee, for this reason i do not consider the petitioner to be entitled to hail. thereforee, ball on merits is hereby rejected. the fact of the illness of petitioner's wife is not disputed and also that the earlier twice he was given interim bail because of the illness of the wile. taking these facts..........appearing for the petitioner has sought bail. inner alia, on the grounds that the evidence in this case has already been recorded. the petitioner was not given the offer to be searched in the presence of a gazetted officer or a magistrate. the more fact that the acp is a gazetted officer is not sufficient compliance of sec.50 of the said act. according to mr. grover sec.50 of the act requires that the accused has to be given an offer whether he would like to be searched by a gazetted officer or by a magistrate. these two offers have to be given. the choice is that of the accused and if these offers are not given then it would amount to non-compliance of the provisions of the said act. to strengthen his arguments he has placed reliance on the decisions of this court as well as other high courts, reported as mahender singh v. state of punjab 1992 (1) chandigarh criminal cases 8, jayapelan v. state 1989 c.c.cas 239, chhotey lal v. state of rajasthan 1990 (1) crim 246. in these authorities he has pointed out that the law requires compliance of sec.50 of the act failing which no charge can be made out against the petitioner and the petitioner in that case is to be acquitted.(3) on the other hand, mr. sharma contended that acp is a gazetted officer. bare reading section 50 would make it clear that the accused ha an option to be searched by both the gazetted officer as well as by a magistrate. nor- it is the intention of the legislature that if the gazetted officer 'is there then the accused should also be taken to a magistrate. in this case since the acp search was conducted it was for the petitioner to have pointed out that he should betaken to a magistrate and since he did not choose to go to the magistrate, there is sufficient compliance of the provisions of section 50 of the act. the search was conducted before a gazetted officer, i.e. acp. according to him in the judgment cited by the counsel for the petitioner the search was not conducted before acp. thereforee,.....

Full Judgment

Usha Mchra, J.

(1) Ajit Singh, petitioner herein, was arrested on 11th February, 1990 on the allegation that on his personal search 600 gms. opium was recovered from his possession. Out of this 600 gms. 50 gms. sample was separated and sent to the CPSL. Petitioner has been booked under the Narcotic Drugs and Psycho tropics Substances Act (hereinafter to be referred as the Act). Before arrest and before search the raiding party officials offered to be searched by the accused. Acp who is a gazetted officer in. his presence the search of the accused was done and on search the above quantity, of Opium was recovered.

(2) Mr. Grover appearing for the petitioner has sought bail. inner alia, on the grounds that the evidence in this case has already been recorded. The petitioner was not given the offer to be searched in the presence of a Gazetted Officer or a Magistrate. The more fact that the Acp is a Gazetted Officer is not sufficient compliance of Sec.50 of the said Act. According to Mr. Grover Sec.50 of the Act requires that the accused has to be given an offer whether he would like to be searched by a Gazetted Officer or by a Magistrate. These two offers have to be given. The choice is that of the accused and if these offers are not given then it would amount to non-compliance of the provisions of the said Act. To strengthen his arguments he has placed reliance on the decisions of this Court as well as other High Courts, reported as Mahender Singh v. State of Punjab 1992 (1) Chandigarh Criminal Cases 8, Jayapelan v. State 1989 C.C.Cas 239, Chhotey Lal v. State of Rajasthan 1990 (1) Crim 246. In these authorities he has pointed out that the law requires compliance of Sec.50 of the Act failing which no charge can be made out against the petitioner and the petitioner in that case is to be acquitted.

(3) On the other hand, Mr. Sharma contended that Acp is a Gazetted Officer. Bare reading Section 50 would make it clear that the accused ha an option to be searched by both the Gazetted Officer as well as by a Magistrate. Nor- it is the intention of the legislature that if the Gazetted Officer 'is there then the accused should also be taken to a Magistrate. In this case since the Acp search was conducted it was for the petitioner to have pointed out that he should betaken to a Magistrate and since he did not choose to go to the Magistrate, there is sufficient compliance of the provisions of Section 50 of the Act. The search was conducted before a Gazetted Officer, i.e. ACP. According to him in the judgment cited by the counsel for the petitioner the search was not conducted before ACP. thereforee, those will not be relevant of applicable to the facts of this case.

(4) I have beared and learned counsel for the parties and have pursued the record. Admittedly, the Acp arrived at the spot with in minute after the accused had been apprehended and the Acp appeared all of a sudden. It is also not disputed that the Acp is a Gazetted Officer and Sec.50of the Act provides that the accused shall be taken to the nearest Gazetted Officer of any of the departments mentioned in Sec.42 or to a Magistrate, Section 42 envisages a Gazetted Officer of the police department also and as the Acp was the Gazetted Officer and came at the spot all of a sudden the petitioner was searched in his presence.

(5) Mr. Grover has also contended that in the alternative he may be given interim bail because the wife of the petitioner Smt. Satwant Kaur has been suffering from chest pain.,i.e.coronery disease and all the connected problems. She was under the R.B Jain Hospital who referred her case to G.B.Pant Hospital. She was admitted in the hospital on 28th June, 1992. Her condition is serious. Previously also on account of her illness he was given interim bail. The facts about the illness of petitioner's wife had earlier been also verified when the order for inform bail was passed on 7th April, 1992 that the petitioner had not misuse the interim bail.-.

(6) It is further clarified that the observations made above will have no bearing on the merits of the case.

Same Court & Year Delhi · 1992 Same Parties Ajit Singh vs Delhi Administration Same Subject Narcotics;Criminal Same Judge Usha Mehra, J. Acts & Sections Narcotic Drugs and Psychotropic Substances Act, 1985 - Sectio...

Narcotics;Criminal