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1998 Supreme(P&H) 766
PUNJAB AND HARYANA HIGH COURT
B. Rai, J.
Sita Ram alias Dhetia - Petitioner
Versus
State of Haryana - Respondent
Criminal Misc. No. 12301-M of 1998.
Decided On : 5 June, 1998
For the Petitioner:Mr. Atul Lakhanpal, Advocate.
For the Respondent: Mr. I.P.S. Sidhu, AAG, Punjab.
Officers of and above the rank of Assistant Sub Inspector in the Police Department are empowered to exercise powers under Section 42 of the NDPS Act, which includes the power to enter, search, seize, and arrest without warrant or authorization within the area of their respective jurisdiction.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 42 - SEARCH AND SEIZURE - POWER OF OFFICERS - NOTIFICATION EMPOWERING OFFICERS OF AND ABOVE THE RANK OF ASSISTANT SUB INSPECTOR IN POLICE DEPARTMENT TO EXERCISE POWERS UNDER SECTION 42 - VALIDITY - INTERPRETATION.
Fact of the Case:
Petitioner sought bail in a case registered under Section 18 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, alleging that the search conducted by Assistant Sub Inspector (ASI) Jai Narain was illegal as he was not duly empowered under Section 42 of the Act.
Finding of the Court:
The court held that the notification issued by the Haryana Government, which empowered officers of and above the rank of Assistant Sub Inspector in the Police Department to exercise powers under Section 42 of the NDPS Act, was valid and that ASI Jai Narain was legally empowered to conduct the personal search of the petitioner.
Issues: 1. Whether ASI Jai Narain was duly empowered to conduct the search of the petitioner in violation of the provisions of the NDPS Act as contemplated under Section 42 of the Act. 2. Whether the provisions of Section 50 of the NDPS Act, which require an officer to take the person to be searched to the nearest Gazetted Officer or Magistrate if requested, are mandatory.
Ratio Decidendi: 1. The court interpreted the notification issued by the Haryana Government, which empowered officers of and above the rank of Assistant Sub Inspector in the Police Department to exercise powers under Section 42 of the NDPS Act, and held that it clearly indicated that officers of the rank mentioned in the notification and above the rank of such officers have the power to enter, search, seize, and arrest without warrant or authorization within the area of their respective jurisdiction. 2. The court held that the provisions of Section 50 of the NDPS Act are mandatory in nature, but whether the offer was made strictly in accordance with the provisions of Section 50 of the Act and the consent was given by the accused voluntarily and without any duress or coercion are questions of fact that can only be appreciated and determined at the trial and not at the stage of consideration of prayer for bail.
Final Decision: The court dismissed the petition for bail, holding that the search conducted by ASI Jai Narain was legal and that the petitioner was not entitled to bail at that stage.
JUDGMENT
B. Rai, J. - Petitioner seeks bail in case F.I.R. No. 89 dated 2.4.1997 under Section 18 of the N.D.P.S. Act registered in Police Station Tohana Distt. Hisar.
2. Brief facts of the case are that a police party headed by Assistant Sub Inspector Jai Narain was near Kalan Maghera minor bridgee, Laloo Ram Lambardar of Dharsul Khurd who was coming from his fields met the police party. When A.S.I. Jai Narain was discussing something with him a person was seen coming from "Indachhul" near the said bridge. That person on seeing the police party turned towards the fields. A.S.I. Jai Narain became suspicious of his movements and accosted him. On inquiry that person disclosed his name as Sita Ram alias Delia son of Gopal resident of village Sathala Haq. On asking as to why he was fearing, he told that he was carrying opium. A notice under section 50 of the N.D.P.S. Act was given. He was asked whether he wanted to be searched by him in the presence of a Magistrate or Gazetted Officer. In reply, Sita Ram stated that he had no objection if his personal search was conducted in the presence of a Magistrate or a Gazetted Officer. Attar Singh a police official was sent to call the Deputy Superintendent of Police at the spot. Kuldip Singh Dy. Superintendent of Police reached the spot along with Attar Singh and others police officials. Sita Ram was produced before him for search. Under the orders of the D.S.P., A.S.I. Jai Narain conducted the personal search of Sita Ram. Sita Ram was carrying opium wrapped in a polythene paper along his belly. Ten grams of opium was taken as sample. The remaining bulk on weighing was found to be 1 K.G. 490 grams.
3. It was argued by the learned counsel for the petitioneer that only those officers/officials mentioned in section 42 of the Act who are empowered to authorised by general or special order of the State Government can have the power to enter, search, seizure and arrest without warrant or authorisation and no other in respect of any offence punishable under Ch. IV of the Act. It was submitted that A.S.I. Jai Narain was not duly empowered to conduct search of the petitioner in violation of the provisions of the Act as contemplated under section 42 of the Act. It was further argued that State of Haryana issued notification dated 29.12.1986, whereby the police officials above the rank of Assistant Sub Inspector in the department of Police had been empowered to perform the duties specified in section 42 of the Act within the area of their respective jurisdiction. Therefore, according to the learned counsel, ASI Jai Narain was not legally empowered to conduct the personal search of the petitioner. The search conducted by him was in violation of the mandatory provisions of section 50 of the Act.
4. The contention raised is misconceived and has no persuasive force. The notification dated 29.12.1986 issued by the Haryana Government, Excise and Taxation Department published in Haryana Govt. Gazette (Extra), reads as under :-
No. S.O. 103/C.A. 61/85/S.42 and 67/86. - In exercise of the powers conferred by sub-section (1) of section 42 and section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Governor of Haryana hereby empowers the officers, of and above the rank of Excise Inspector in the Excise and Taxation Department; of and above the rank of Naib Tehsildar in the Revenue Department and of and above the rank of Assistant Sub Inspector in the Police Department to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and also authorise the said officers to exercise the powers specified in section 67.
5. From a careful reading of the notification ibid, it appears that officers, of and above the rank of Excise Inspector in the Excise Department; of and above the rank of Naib Tehsildar in the Revenue Department and of and above the rank of Assistant Sub Inspector in the Police Department, were empowered to exercise
