P&H HC | Recording joint-consent memo of co-accused persons under S. 50 NDPS Act even though at separate time held serious lapse in investigation

Punjab and Haryana High Court: Arvind Singh Sagwan J. allowed the present application and ordered a departmental inquiry against the officers on the ground of lapse in investigation.

A petition for regular bail under Code of Criminal Procedure was filed for the offence under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985. The interim bail was granted to the petitioner.

The facts of the case were that a car was stopped by the police which was driven by the petitioner. The Investigation officer gave them an option to be searched before either a gazette officer or before a Magistrate and in reply of which a non-consent memo was recorded which was jointly signed by accused. There after the opium was recovered which was carried by accused.

The Court opined that the procedure adopted by the Investigation officer and DSP while recording the joint non-consent as well as consent memo was not as per the principle applied down by the Supreme Court in the case  of  State of Rajasthan v. Parmanand, wherein it has been held that considering the stringent provisions under the NDPS Act, the right available to an accused person under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate, will be frustrated in case clear, unambiguous and individual offer is not given to the accused person. It is further held that joint communication of a right may not be clear or unequivocal as it may create confusion and may result in diluting the right. Thus, appropriate departmental action in the matter for a serious lapse in the investigation was ordered by the court. Also, the petition was allowed and the interim bail was made absolute.[Harjit Singh v. State of Punjab, 2019 SCC OnLine P&H 1426, decided on 16-08-2019]

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