Rajwinder Singh @ Happy v. State Of Haryana




    
 



















































 





















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"25. One of the grounds raised on behalf of the appellant was that P.W.3 was not holding the post of D.S.P. In a substantive manner in order to hold that he was a Gazetted officer on the date of earch. According to the appellant, P.W.3 was not a regularly promoted D.S.P. But was only an Inspector functioning as a D.S.P. In a category called "Own Rank Pay" D.S.P. According to the appellant, P.W.3 was drawing the pay of an Inspector from I.R.D. and was not holding the post of D.S.P. On a regular basis. It was, therefore, contended that such a person who was not duly promoted as D.S.P., cannot be equated to the status of a Gazetted officer in order to hold that a search was conducted in his presence was a valid search as contemplated under Section 50 of the NDPS Act.

As far as the said point raised on behalf of the appellant, we do not find any material or a counter-stand taken to the effect that P.W.3 was a regularly promoted D.S.P. or that as per the rules even as an 'Own Rank Pay' D.S.P., he would be equated to any other D.S.P., holding a substantive post.

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Unfortunately, as stated by us earlier, the trial Court having taken a view that Sections 42 and 50 were not applicable, completely omitted to examine the said defence raised on behalf of the appellant. We also do not find any contra evidence laid on behalf of the prosecution to counter the said ground raised on behalf of the appellant."

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"12. Secondly, it is evident from the cross-examination of PW-1 SI Gurmail Singh, who is the Investigating Officer in this case, that he was ad hoc ASI and had not passed the departmental course for promotion as A.S.I. Further, it is also admitted by him that he was receiving pay of Constable Grade II at the time of occurrence of this case. Not only that DW-1 Constable Preet Inder Singh also proved from the summoned record that the substantive rank of SI Gurmail Singh was Constable Grade II and that his SI rank is only O.R.P. (own rank promotion). He also proved that SI Gurmail Singh had never passed any course for promotion as Head Constable or that of Assistant Sub Inspector.

In his further cross-examination he admitted it to be correct that before promotion to the rank of SI, one has to bass the course of Head Constable and also that of ASI.

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