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2018 Supreme(P&H) 2243
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mrs. Justice Daya Chaudhary
Criminal Misc. No. M-5295 of 2018
Ramesh Kumar
v.
State of Punjab
{Decided on 04/07/2018}
Mr. Charanpreet Singh, Advocate for Mr. B.S. Kathuria, Advocate for the petitioner.
Mr. Rahul Rathore, DAG, Punjab.
Narcotics – Personal Search – A joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purpose of Section 50 of the Act.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985, S.21 and S.50 – Bail – NDPS – Personal Search – Accused was not properly communicated about his right to be searched as per S.50 NDPS Act – Further, petitioner is in custody for the last one and half year and all official witnesses remains to be examined – Bail granted – Criminal Procedure Code, 1973, S.439. (Para 6)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985, S.50 – Personal Search – Joint Communication – Each accused has a right to be informed that he has a right to be searched before the nearest Gazetted Officer or the Magistrate – A joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purpose of Section 50 of the Act. (Para 5)
Mrs. Daya Chaudhary, J. (Oral)-The present one is the second petition filed under Section 439 Cr.P.C. on behalf of petitioner-Ramesh Kumar @ Meshi for grant of regular bail in case FIR No.225 dated 26.05.2015 registered under Section 21/61/85 of the Narcotic Drugs and Psychotropic Substances Act at Police Station Phagwara City, District Kapurthala.
2. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the case whereas he has played no role. The petitioner has been implicated in the case on the basis of suspicion. The alleged recovery of 250 gms of intoxicating powder has been stated to be recovered from him. Learned counsel further submits that there is noncompliance of provisions of Section 52(A) of the NDPS Act as samples were supposed to be taken before the Magistrate whereas in the present case, the police party has done the sampling at the spot of recovery. There is non-compliance of provisions of Section 50 of the NDPS Act also. Learned counsel also submits that the petitioner was apprehended at the spot by five police officials but he was not taken before the nearest Gazetted Officer or the Magistrate. The alleged recovery of 250 gms of intoxicating powder was detected to be Alprazolam, which is a psychotropic substance and is covered under Section 22 of the NDPS Act. The charges have been framed by the trial Court under Section 21 of the NDPS Act. Learned counsel also submits that the petitioner is entitled for grant of regular bail only on this ground. The petitioner was granted interim bail by the trial Court due to non-receipt of the FSL report with the condition that he shall surrender before the trial Court on receiving the FSL report and thereafter, he surrendered, which shows the bonafide conduct of the petitioner. No other case under NDPS Act is pending against the petitioner. The petitioner is in custody for the last 1½ years and no purpose would be served by keeping him in custody. All witnesses are official witnesses and there is no possibility that the petitioner may influence the official witnesses. Learned counsel for the petitioner has also relied upon judgments rendered by Hon’ble the Supreme Court in State of Rajasthan vs. Parmanand and another, [2014(2) Law Herald (SC) 913 : 2014(2) Law Herald (P&H) 1449 (SC)] : 2014(2) RCR (Criminal) 40, Gurjant Singh @ Janta vs. State of Punjab, [2013(6) Law Herald (SC) 5016] : 2013 (4) RCR (Criminal) 874 as well as judgments rendered by this Court in Balinder Singh vs. State of Haryana, [2014(5) Law Herald (P&H) 4242] : 2015(1) RCR (Criminal) 972, Gurpreet Singh @ Gopi vs. State of Punjab, Criminal Misc. No. M-11968 of 2017 decided on 30.05.2017, Jagroop Singh @ JP vs. State of Punjab, Criminal Misc. No. M-3895 of 2017 decided on 17.03.2017, Gurjant Singh vs. State of Punjab, Criminal Misc. No. M-30224 of 2017 decided on 30.08.2017, Sikandar @ Bodha vs. UT of Chandigarh, Criminal Misc. No. M-15497 of 2017 decided on 18.09.2017 in support of his contentions.
3. Learned State counsel has not disputed the custody period and also the fact that no other case is pending against the petitioner. However, learned State counsel has opposed the submissions made by learned counsel for the petitioner on the ground that in case, the recovery is from the accused but from the car, the provisions of Section 50 of the NDPS Act would not be applicable. In case of chance recovery, it is not necessary for the Police Officers/Officials to comply with the provisions of Section 50 of the NDPS Act.
4. Heard arguments of learned counsel for the petitioner as well as learned State counsel and have also perused the contents of the FIR and other documents available on the file.
5. In the present case, the recovery is 250 gms of intoxicating powder, which was found to be Alprazolam in FSL report, which is covered under Section 22 of the NDPS Act and charges have been framed under Section 21 of the NDPS Act, which is also debatable but it would b
