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2000 DIGILAW 51 (PNJ)

Gurdeep Singh v. State Of Punjab

2000-01-14

K.S.KUMARAN

body2000
Judgment K.S.Kumaran, J. 1. These two petitioner are disposed of by this common order since both of them arise from the same F.I.R. No. 39 dated 27.5.1999 registered at Police Station, Bhikhi under the NDPS Act wherein the following allegations are found. 2. On the date of occurrence, at about 5 a.m. the police party saw petar rehra (a cart) driven by a person (whose name was found later on as Dalip Singh), and three persons (whose names were found out to be Gurjant Singh-Petitioner in Cr. M. 23676-M/99, Baljinder Singh and Gurdeep Singh-Petitioners in Cr.M. 27049-M/99) were sitting behind. The A.S.I, stated to them that there was narcotic substance in the petar rehra, that the same was to be searched and that they have a right to have the search conducted before a Magistrate or a Gazetted Officer. The above said persons consented turnwise that they are ready to have the search conducted before some Gazetted Officer. The memo of consent was prepared separately. On information, Amarjit Singh, D.S.P. came at 6.15 am and he also Identified himself on which they consented to be searched before him. On a search, 3 bags of poppy husk were found underneath the palli spread in petar rehra. The petitioners bail applications were dismissed by the learned Additional Sessions Judge, Mansa and therefore they have approached this Court under Section 439 Cr. PC for bail. 3. I have heard the counsel for both the sides and perused the records on file. 4. The learned Counsel for the petitioners contended that the petitioners had no connection with the contraband allegedly recovered from the petar rehra since they had only taken a lift in the said petar rehra. Another contention put forward by the learned Counsel for the petitioners is that the co-accused of the petitioners was forced to carry on the bags by one Swaran Singh, a Constable of Police Station Bhikhi, without telling them about the contents of these bags. The learned Counsel for the petitioners also contends that the recovery was effected at 5 a.m. and, therefore, there is non-compiiance of the provisions of Section 42 of the NDPS Act since the reasons for searching the petar rehra without a warrant have not been recorded in writing. The learned Counsel for the petitioners also contends that the recovery was effected at 5 a.m. and, therefore, there is non-compiiance of the provisions of Section 42 of the NDPS Act since the reasons for searching the petar rehra without a warrant have not been recorded in writing. The learned Counsel for the petitioners also contends that petitioners are illiterate and that the consent memo was not read over to each of the petitioners. The learned Counsel for the petitioners also contends that Dalip Singh who was allegedly driving the vehicle, Baljinder Singh who was allegedly sitting along with the petitioners and Swaran Singh Constable, who had allegedly sent this contraband, have all been released on bail and, therefore, the petitioners are also entitled to be released on bail. 5. The contention of the learned Counsel for the petitioners that the search was made before the sunrise and that the provisions of Section 42 of the NDPS Act have not been complied with is unacceptable, because, even in the petition, it has been stated that the D.S.P. had come at 6.15 am. Therefore, the search must have been conducted only thereafter. The occurrence having taken place in the month of May, 1999, the search should have been carried out after sunrise and therefore there is no necessity to comply with the provisions of Section 42 of the NDPS Act. 6. The contention of the learned Counsel for the petitioners that the consent memos were not read over and, therefore, there is non-compliance of the provisions of Section 50 of the NDPS Act, cannot be accepted in as much the petitioners do not say that they are illiterate. 7. But the learned Counsel for the petitioners contended that the petitioners had only taken lift in the petar rehra, that they had no connection with the contraband allegedly recovered, and that the 3 bags were forced upon the co-accused to be carried in the rehra by Constable--Swaran Singh. They also contend that the recovery was made from the vehicle but not from the petitioners and there is nothing to show that they were in conscious possession of the contraband allegedly recovered. 8. They also contend that the recovery was made from the vehicle but not from the petitioners and there is nothing to show that they were in conscious possession of the contraband allegedly recovered. 8. The learned Csounsel for the State, of course, contends that these petitioners were also in the petar rehra, that Dalip Singh who was driving the vehicle, did not say as to who was the owner, and that the other co-acussed have been granted bail on the alleged grounds of illegalities. 9. Taking into consideration the arguments but, at the same time, without meaning to express any opinion on the merits of the case, I am of the view that the petitioners are entitled to be released on bail. 10. Both the petitions are allowed. The petitioners are ordered to be released on bail on their furnishing sufficient surety to the satisfaction of C.J.M., Mansa.