Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 3327 (ALL)

Abdul Jabbar v. State Of U. P.

2009-10-23

ASHOK SRIVASTAVA

body2009
JUDGMENT: Ashok Srivastava, J. This bail application has been moved on behalf of the applicant Abdul Zabbar who is involved in Case Crime No. 59 of 2008, under Section 8/22 N.D.P.S. Act, Police Station Kotwali, district Ghaziabad. 2. The complainant of this case is Raj Mani Pandey, Station House Officer of Police Station Kotwali, Ghaziabad. On 21.1.2008 he was petrolling in his area alongwith other police personnel. An informer met him and informed that a Car, which was coming from the side of Ghaziabad and going towards Delhi was being occupied by 3 persons who were carrying with them certain amount of narcotic substance. Believing the information given by the informer, the complainant intercepted the vehicle ( Indica Car No. DL 3/C/W-567) The complainant found that besides the driver, two other persons were sitting in the said car. On enquiry one of them disclosed his name as Abdul Zabbar, the applicant. Abdul Zabbar was holding a black coloured bag in his hand. On search it was found that bag contained illicit heroin having its weight as 500 gms. An arrest and recovery memo was prepared at the spot. The said recovery was conducted at about 9.30 P.M. near the mortuary situated near the river Hindon. An F.I.R. was lodged at the police station the same night on the basis of the recovery memo. The applicant was arrested by the complainant and he is in jail. 3. It has been submitted on behalf of the applicant that the applicant is in jail since 21.1.2008, that in the instant case the arresting officer has failed to comply with the mandatory provisions as contained in Sections 42 and 50 of the N.D.P.S. Act. It has also been submitted that the provisions of Section 100 of Criminal Procedure Code had also not been complied with. It has further been submitted that the entire story set up by the complainant is highly improbable, that no heroin was recovered from the possession of the applicant and that there is no criminal history behind the applicant. With these arguments the bail prayer of the applicant has been pressed. 4. The bail application has been vehemently opposed by learned A.G.A. I have heard learned counsel for the applicant and learned A.G.A. and examined the records and gone through the rulings filed from the both sides. 5. With these arguments the bail prayer of the applicant has been pressed. 4. The bail application has been vehemently opposed by learned A.G.A. I have heard learned counsel for the applicant and learned A.G.A. and examined the records and gone through the rulings filed from the both sides. 5. From the perusal of the recovery memo it is evident that the arresting officer had asked the applicant and his associates, before searching the bag which the applicant was holding in his hand at the time of incident, that whether he wanted that the search should be conducted either in presence of a Magistrate or a Gazetted Officer ? The applicant had also replied that since he had been arrested and he was having in his possession illicit heroin, the complainant can conduct the search and that there was no point that the search may be conducted either before the Magistrate or a Gazetted Officer. It is not a case of personal search. It has been vehemently argued from the side of the applicant that from the perusal of the recovery memo it is evident that the applicant was not informed of his legal right informing him in clear words that it was his legal right to be searched before a Magistrate or a Gazetted Officer and, therefore, there has been a violation of Section 50 of the N.D.P.S. Act in the instant case which entitles the accused applicant to be released on bail. Replying all these arguments, learned A.G.A. has pointed out that it is not a case of personal search of the applicant. He also drew my attention towards Baldev Singh's ruling (State of Punjab Vs. Baldev Singh ) (1999) 6 SCC 172 ). My attention has also been drawn by learned A.G.A. towards the case reported as (2007) 1 SCC (Crl.) 370 ( Vijaysinh Chandubha Jadeja Vs. State of Gujarat). Para 8 of this judgment has been referred- which is as follows : “8. From the aforesaid decision in Baldev Singh case it is clear that it is not enough that the accused be told that whether he would prefer to be searched in the presence of a gazetted officer or a Magistrate, but he must be told of his right to be searched in the presence of a gazetted officer or a Magistrate. From the aforesaid decision in Baldev Singh case it is clear that it is not enough that the accused be told that whether he would prefer to be searched in the presence of a gazetted officer or a Magistrate, but he must be told of his right to be searched in the presence of a gazetted officer or a Magistrate. It may be noticed that clause (1) of Section 50 of the NDPS Act only indicates that only in cases where the accused suspect requires to be searched in the presence of a gazetted officer or a Magistrate, he need be taken to such place. It is also important to note that the option is for the searching officer to take him either to the gazetted officer or to the Magistrate. In Baldev Singh case the Constitution Bench also observed that it is not necessary that in the search memo or in the contemporaneous document it should be specifically mentioned that the accused suspect was apprised of his right under Section 50(1) of the NDPS Act. It has been so held that it is enough that the officer, who conducts the search, gives oral evidence to the effect that the accused was informed of his right under Section 50(1) of the NDPS Act. 6. From the perusal of the last 8 lines of the above para, it is evident that it is not necessary that in the search memo or in the contemporaneous document it should be specifically mentioned that the accused suspect was apprised of his right under Section 50(1) of the N.D.P.S. Act. It has further come in it that it is enough that the officer who conducted the search gives oral evidence to this effect that the accused was informed of his right under Section 50(1) of the N.D.P.S. Act. In the instant case we are not here at the stage of trial. This court is merely disposing of the bail application. Therefore, it cannot be presumed that the arresting officer will not say before the trial court that the accused was not informed of his right under Section 50(1) of the Act. 7. In the instant case 500 gms. of illicit heroin is allegedly recovered from the possession of the applicant. This amount is commercial quantity. I have considered all the aspects of the case. 7. In the instant case 500 gms. of illicit heroin is allegedly recovered from the possession of the applicant. This amount is commercial quantity. I have considered all the aspects of the case. Without expressing any opinion as to the merits of the case, I am of the view that there is no merit in this bail application and, therefore, it is rejected.