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2000 DIGILAW 61 (PNJ)

Mehtab Singh @ Mehtaba v. State of Punjab

2000-01-17

K.S.KUMARAN

body2000
JUDGMENT K.S. Kumaran, J. - F.I.R. No. 141 dated 25.11.1998 has been registered at Police Station Patti under Sections 18, 61 and 85 of the N.D.P.S. Act wherein the following allegations are found :- 2. On 25.11.1998, SHO Police Station Patti alongwith other police officials was going on patrol duty and when they reached the bridge of the minor canal in the Village Lohka two persons were found coming from the opposite direction. On suspicion, they were appehended. One of them gave his name as Amrik Singh alias Amrika, while the other gave his name as Mehtab Singh alias Mehtaba (petitioner herein). An offer was made to them whether they wanted to be searched by the S.H.O. concerned or by a Magistrate, or in the presence of a Gazetted Police Officer. They stated that they can be searched in the presence of a Gazetted Police Office, on which the consent memo was prepared. D.S.P., Patti was requested to reach the spot and on his arrival he also ascertained the consent of the accused to be searched in his presence after making an offer to be searched in his presence or in the presence of a Magistrate. Both of them gave their consent and wanted to be searched in his presence, upon which the consent memo was prepared. At the first instance, Mehtab Singh (petitioner herein) was searched in the presence of D.S.P. and opium wrapped in a glazed paper which he had kept in the shawl wrapped by him was found. 10 grams of sample and the remainder of 1.240 kilograms of opium were seized under separate parcels and sealed. 3. The petitioner approached the Special Judge, Amritsar for bail but his request was declined by the Special Judge, Amritsar. Therefore, he has approached this Court under Section 439 Criminal Procedure Code for bail. 4. I have heard the counsel for both the sides and perused the records on file. 5. Learned counsel for the petitioner contends that from the narration of the allegations made, it is clear that the S.H.O. had made a joint offer to the petitioner and Amrik Singh, and even that offer was that the petitioner could be searched by the S.H.O. himself or by a Magistrate or in the presence of a Police Gazetted Officer. 5. Learned counsel for the petitioner contends that from the narration of the allegations made, it is clear that the S.H.O. had made a joint offer to the petitioner and Amrik Singh, and even that offer was that the petitioner could be searched by the S.H.O. himself or by a Magistrate or in the presence of a Police Gazetted Officer. Therefore, the learned counsel for the petitioner contends that the joint offer under Section 50 of the N.D.P.S. Act as well as the partial offer that the petitioner could be searched before a Police Gazetted Officer are not valid and, therefore, the petitioner is entitled to be released on bail. He also contends that once the offer is not valid, any contraband which was allegedly seized from the petitioner, cannot be used against him in the trial. For this purpose, he relied upon the decision of the Honble Supreme Court in State of Punjab v. Baldev Singh, 1999(3) Recent Criminal Reports 533 wherein it has been held that an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused. 6. The petitioner has also pointed out in his bail application that one of his earlier applications for bail before this Court was dismissed as withdrawn while his request for bail in another application before this Court was declined by this Court. Therefore, the learned counsel for the State contends that in view of the dismissal of the earlier bail application on 23.7.1999, the present petition has to be dismissed since no fresh grounds have been made out for granting bail. 7. But the learned counsel for the petitioner, on the other hand, contends that the co-accused Amrik Singh who is similarly placed, has been granted bail by this Court by order dated 3.5.1999 and, therefore, the same concession can be extended to the petitioner also. 7. But the learned counsel for the petitioner, on the other hand, contends that the co-accused Amrik Singh who is similarly placed, has been granted bail by this Court by order dated 3.5.1999 and, therefore, the same concession can be extended to the petitioner also. In this connection, the learned counsel for the petitioner relied upon a decision of the Madhya Pradesh High Court in Vishnu Ram Chandra Maheshwari v. State of M.P., 1999(3) All India Criminal Law Reporter 645 wherein it was held that generally rule of consistency requires that if a co-accused has been granted bail by the Court and the case against the applicant before the Court is similar and identical, he should be granted bail. That was also a case where the accused whose application for bail was earlier dismissed, but was subsequently granted bail on the ground of parity in view of the fact that the co-accused whose case is also similar and identical, had been granted bail. That decision squarely applies to the facts of the case in hand. 8. The petitioner and his co-accused in this case were informed by the S.H.O., that they were in possession of some narcotic drugs and were given the offer under Section 50 of the N.D.P.S. Act, and that offer was also a partial one inasmuch as they were given the offer to be searched in the presence of a Police Gazetted Officer. 9. Therefore, the petitioner is entitled to be released on bail on the ground of parity. Hence, this petition is allowed. 10. The petitioner is ordered to be released on bail on his furnishing sufficient surety to the satisfaction of C.J.M., Amritsar. Petition allowed.