TMI Blog2004 (2) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... nt witnesses to evidence this offer, hardly makes any difference to the situation. In our view, therefore, the High Court erred in holding that the action of the police officers was contrary to Section 51 of the Act and giving the benefit of doubt to the respondent-accused when there was no scope for raising such a doubt at all. - - - - - Dated:- 27-2-2004 - K Balakrishnan B Srikrishna, JJ. JUDGMENT 1. This appeal by the State of Punjab is directed against a judgment of the High Court of Punjab Haryana acquitting the respondent of the charge framed against him under Section 18 r/w Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). 2. The relevant facts necessary f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the contravention of Sections 18 and 21 of the Act and was put up for trial. The Addl. Sessions Judge, Barnala convicted him of the charges leveled against him. 3. The respondent-accused carried an appeal to the High Court against his conviction. The first question urged before the High Court was whether there was a contravention of Section 50 of the Act inasmuch as the offer made to the accused for searching his person in the presence of a Magistrate or a Gazetted Officer and his declining the offer of the same, was not corroborated by any independent witnesses. The High Court was of the view that, since the respondent-accused was apprehended in a public place, there was no dearth of witness as available at the time and place where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ujarat, , took the view that Section 50 categorically lays down that if the search is to be conducted by an officer duly authorised under Section 42 and the search is about to be conducted under the provisions of Section 41, 42 or 43, the officer concerned does owe a duty to intimate the person to be searched that, he has the option to be taken to the nearest Gazetted Officer/Magistrate for the purpose of carrying out the search. But in the event of a situation otherwise, there is no such obligation. It was pointed out that, if an accused person, on seeing a patrolling police party, starts running, which excites the suspicion of the police party, as a result of which, he is apprehended and searched, the question of compliance of the safegua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried in his hand. See in this connection, the observations of the Constitution Bench of this Court in Baldev Singh's case, (supra) the judgment of this Court in Gurbax Singh v. State of Haryana, (2001) 3 SCC 28 and in Kalema Tumba v. State of Maharashtra, . 8. In the present case, for both the reasons discussed earlier, we are of the view that Section 50 does not apply at all. The mere fact that the officer concerned offered to have the search of the respondent-accused taken before a Gazetted Officer/Magistrate, or that there were no independent witnesses to evidence this offer, hardly makes any difference to the situation. In our view, therefore, the High Court erred in holding that the action of the police officers was contrary to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graphs of narcotic drugs or substances and any list of samples drawn under Sub-section (2) of Section 52A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. 11. Secondly, when the very same standing orders came up for considerations in Khet Singh v. Union of India, this Court took the vie that they are merely intended to guide the officers to see that a fair procedure is adopted by the Officer-in-Charge of the investigation. It was also held that they were not inexorable rules as there could b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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