Sita Ram alias Dhetia vs State of Haryana

B. Rai, J.—Petitioner, seeks bail in case F.I.R. No. 89 dated 2.4.1997 u/s 18 of the N.D.P.S. Act registered in Police Station Tohana, Distt. Hisar.

Brief facts of the case are that a police party headed by Assistant Sub-Inspector Jai Narain was near Kalan Maghera minor bridge, Laloo Ram Lambardar of Dharsul Khurd who was coming from his fields met the police party. When A.S.I. Jai Narain was discussing something with him, a person was seen coming from �Indachhul� near the said bridge. That person on seeing the police party turned towards the fields.A.S.I. Jai Narain became suspicious of his movements and accosted him. On inquiry that person disclosed his name as Sita Ram alias Dhatia, son of Gopal, resident of village Sathala Haq. On asking as to why he was fearing, he told that he was carrying opium A notice u/s 50 of the N.D.P.S. Act was given. He was asked whether he wanted to be searched by him in the presence of a Magistrate or Gazetted Officer. In reply, Sita Ram stated that he had no objection if his personal search was conducted in the presence of a Magistrate or a Gazetted Officer. Attar Singh, a police official was sent to call the Deputy Superintendent of Police at the spot. Kuldip Singh, Dy. Superintendent of Police reached the spot along with Attar Singh and other police officials. Sita Ram was produced before him for search. Under the orders of the D.S.P., A.S.I. Jai Narain conducted the personal search of Sita Ram. Sita Ram was carrying opium wrapped in a polythene paper along his belly. Ten grams of opium was taken as sample. The remaining bulk on weighing was found to be 1 Kg. 490 grams.

It was argued by the Learned Counsel for the Petitioner that only those officers/officials mentioned in Section 42 of the Act who are empowered or authorised by general or special order of the State Government can have the power to enter, search, seize and arrest without warrant or authorisation and no other in respect of any offence punishable under Chapter IV of the Act. It was submitted that A.S.I. Jai Narain was not duly empowered to conduct search of the Petitioner in violation of the provisions of the Act as contemplated u/s 42 of Act. It was further argued that State of Haryana issued notification dated 29.12.1.986, whereby the police officials above the rank of Assistant Sub-Inspector in the department of Police had been empowered to perform the duties specified in Section 42 of the Act within the area of their respective jurisdiction. Therefore, according to the Learned Counsel, ASI Jai Narain was not legally empowered to conduct the personal search of the Petitioner. The search conducted by him was in violation of the mandatory provisions of Section 50 of the Act.

The, contention raised is misconceived and has no persuasive force. The notification dated 29.12.1986 issued by the Haryana Government, Exicse and Taxation Department published in Haryana Govt. Gazette (Extra), reads as under :

No.S.O. 103/CA 61/85 Ss. 42 and 67/86.--In exercise of the powers conferred by sub-section (1) of Section 42 and Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Governor of Haryana hereby empowers the officers, of and above the rank of Excise Inspector in the Excise and Taxation Department ; of and above the rank of Naib Tehsildar in the Revenue Department and of and above the rank of Assistant Sub -Inspector in the Police Department to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and also authorise the said officers to exercise the powers specified in Section 67.

From a careful reading of the notification ibid, it appears that officers, of and above the rank of Excise Inspector in the Excise Department ; of and above the rank of Naib Tehsildar in the Revenue Department and of and above the rank of Assistant Sub-Inspector in the Police Department, were empowered to exercise the powers and perform the duties specified in Section 42 within the area of their respective jurisdiction and were also authorised to exercise the powers specified in Section 67 of the Act. The words �of� and �above the rank of� are conspicuously significant and the word �of� wherever used in the said notification before �and above the rank of� has its own meaningful significance. From the plain reading of the notification, as a whole, it is abundantly clear that the officers of the rank mentioned in the notification and above the rank of such officers,, have the power to enter, search, seize and arrest without warrant or authorisation within the area of their respective jurisdiction. Therefore, the contention of the Learned Counsel that Assistant Sub-Inspector had no authority to conduct the search falls to the ground.

It was next argued by the Learned Counsel for the Petitioner that Section 50 of the Act provides that when any officer duly authorised u/s 42 is about to search any person under the provisions of Sections 41, 42 or 43, he shall, if such person so required take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. The provisions of Section 50, according to the Learned Counsel are mandatory in nature. In the instant case, there was no compliance of the provisions of Section 50 of the Act in stricto sensu. Therefore, the Petitioner is entitled to bail. Whether the offer was made strict�v in accordance with the provisions of Section 50 of the Act and the consent was given by the accused voluntarily and without any duress or coercion, are the questions of fact which are required to be proved like any other fact and can only be appreciated and determined at the trial and not at the stage of consideration of prayer for bail If at the stage of bail, that aspect is considered and the plea raised is accepted, that would amount to deciding the case without trial.

For the reasons above, I find no merit in this petition and the same is dismissed.