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Judgment
G.S. Singhvi, J.
PetitionerNachattar Singh has applied for grant of bail under Section 439 of the Code of Criminal Procedure.
The facts available on the record of the case show that the petitioner was arrested on 31.10.1996 in connection with FIR No. 124 dated 31.10.1996 registered at Police Station Ghal Khurd, District Ferozepur, in relation to an offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He applied twice before the Additional Sessions Judge, Ferozepur, for being enlarged on bail and on both the occasions, the learned Additional Sessions Judge, Ferozepur, turned down his request. Crl. Misc. No. 58M of 1997 filed by him in this court was dismissed as withdrawn on February 3, 1997.
In support of this application, Shri N.S. Gill argued that the contents of First Information Report do not inspire confidence and it is clearly a case of the police having framed up the petitioner. Shri Gill further submitted that the provisions of Section 50 of the Act have been violated by the police authorities and, therefore, the prosecution of the petitioner is bound to fail. He argued that there is no justification for the continuous detention of the petitioner. Learned counsel further submitted that the failure of the prosecution to examine its witnesses on 30.5.1997 should also be taken into consideration for directing the release of the petitioner. Shri Gill relied on the judgments of this court in Baram Khan v. State of Haryana, 1992(3) R.C.R. 323 and Rang Lal v. State of Haryana, 1995(3) R.C.R. 212.
On the other hand, Shri Cheema argued that there has been no violation of Section 50 of the Act because the petitioner was given option to be searched either by a Magistrate or higher police officer and the search in fact had been conducted at the instance of and in the presence of the Deputy Superintendent of Police Sh. Harminder Singh. Shri Cheema argued that the petitioner has been charged with an extremely serious offence and it would be gravely injurious to society to release him on bail at this stage.
After having thoughtfully considered the submissions made by the learned counsel for the parties, I am of the opinion that it is not a fit case for directing the release of the petitioner on bail at this stage of the case. The judgments relied upon by Shri Gill will have to be read subject to the decision of the Supreme Court in Manohar Lal v. State of Rajasthan, 1996(1) RCR 660 : JT 1996(1) SC 480 and Raghbir Singh v. State of Haryana, 1996 SCC (Crl.) 266. In Manohar Lal''s case, the Supreme Court held :
".... The provision only requires the option to be given to the accused to say whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate; and on exercise of that option by the accused, it is for the officer concerned to have the search made in the presence of the nearest Gazetted Officer or the nearest Magistrate whosoever is conveniently available for the purpose in order to avoid undue delay in completion of that exercise. It is clear from Section 50 of the N.D.P.S. Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer taking the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused."
The same very view has been reiterated by a three Judges Bench in Raghbir Singh''s case (supra).
In view of the above, the petition is rejected at this stage. The petitioner shall be free to move fresh application after the prosecution evidence is completed. Learned Additional Sessions Judge, Ferozepur, should make an endeavour to record the evidence of prosecution within a period of three months.