Sulinder Singh @ Tinki v. State Of Punjab
215 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M No.58631 of 2024 Date of decision: 08.05.2025 SULINDER SINGH @ TINKI .....Petitioner Versus STATE OF PUNJAB .....Respondent
CORAM:
HON'BLE MR. JUSTICE H.S. GREWAL
Present:
Mr. Gaurav Rana, Advocate and Mr.
for the petitioner.
Mr. Manvir Singh Toor, AAG, Punjab.
***
This is a petition for regular bail filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 in case FIR No.35 dated 15.02.2024 under Section 22 of NDPS Act, 1985 registered at Police Station Garhshankar, District Hoshiarpur. 2.
Custody certificate filed in Court today, is taken on record. 3.
The allegations against the petitioner are that he has been apprehended with 15 injections of mark Leegesic Buprenorphine IP/2ml, which falls under the commercial quantity and 20 grams of intoxicant powder, falling into non-commercial quantity.
4.
Learned counsel for the petitioner contends that since the alleged contraband was recovered from the pocket of the trouser, the rigours of Section 50 of the NDPS Act, 1985 were attracted and the Investigating Officer himself could not have searched the petitioner and the petitioner should have been produced
before a Gazetted Officer. In order to support his contentions, he has relied upon the judgment of Hon'ble Supreme Court in case "Arif Khan @ Agha Khan Vs. State of Uttarakhand", Law Finder Doc Id#1018496 whereby it is held that as per Section 50 of the NDPS Act, 1985, it is mandatory on the part of authorised officer to make suspect aware of existence of his right to be searched before a Gazetted Officer or Magistrate, if so required by him and this requires strict compliance. 5.
I have heard learned counsel for the parties and has gone through the material placed on record.
6.
However, in view of Arif Khan case (supra) Hon'ble Supreme Court in case "Ranjan Kumar Chadha Vs. State of Himachal Pradesh", 2023 (4) RCR (Criminal) 458 held as under: "
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5. The raiding police party accordingly obtained his consent in writing to be searched by the raiding police party. The raiding police party then searched the accused which resulted in seizure of "charas" weighing around 2.5 kg in quantity from his body. x x x x
24. We do not agree to this finding of the two courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "charas" does not satisfy the mandatory requirements of Section 50 as held by this Court in Vijaysinh Chandubha Jadeja. This we say for the following reasons: 24.1. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or gazetted officer.
24.2. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "charas" was not made from the appellant in the presence of any Magistrate or gazetted officer.
24.3. Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "charas" from him, was the gazetted officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a gazetted officer. 24.4. Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a gazetted officer.
25. Though, the prosecution examined as many as five police officials (PW 1 to PW 5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a gazetted officer.
26. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal." -.
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In view of above, since the petitioner waived his right himself of being searched before a Gazetted Officer and had reposed satisfaction of being searched by the Investigating Officer/ arresting Officer, therefore, there is no infirmity in the search conducted at the time of alleged recovery. This Court does not find any merit in the submissions so made by learned counsel for the petitioner and the petitioner has failed to make out any case for this Court to grant the concession of regular bail. 8.
Accordingly, the present petition is dismissed. 08th May, 2025 (H.S. GREWAL) JUDGE Whether speaking/ reasoned : Yes / No Whether reportable : Yes / No