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3. From perusal of the first information report dated 24.02.2019 it comes out that on 24.02.2019 the police party noticed two persons moving in suspicious circumstances, who upon seeing the police personnel, tried to run away. The police personnel managed to catch hold of one person namely the applicant while the other person managed to escape. On being arrested, the said person disclosed his name as Mohd. Irshad i.e. the applicant. Upon being asked as to why he tried to run away, the applicant replied that he is carrying morphine in a bag and the person who ran away was his friend/elder brother Mohd. Junaid. The police personnel informed the applicant that he has to be searched by a gazetted officer or a magistrate under the provisions of Section 50 of the Criminal Procedure Code (as indicated in the first information report) to which the applicant informed that as he is carrying morphine, he does not wish to be searched by any other person and that the police personnel may themselves search the applicant. Upon such consent being given by the applicant, the Station Officer searched the applicant and in the bag being carried by the applicant, it was noticed that a polythene was kept. The applicant informed about the contents of the polythene as morphine. The said morphine was weighed in the weighing scale by the police personnel from which it came out that the weight of morphine was one kilogram and ten grams, being brown in colour which was sealed. The applicant was also arrested and the witnesses were said to be the police personnel inasmuch as despite various persons being present none came forward to be a witness on account of not being willing to be involved. The applicant is said to be in jail since 24.02.2019.

(i) 2014 (2) SCC (Crl.) 563 - State of Rajasthan vs. Parmanand and another;
(ii) 2019 (1) SCC (Crl.) 371 - S.K. Raju alias Abdul Haque alias Jagga vs. State of West Bengal;
(iii) (2011) 1 SCC (Crl.) 497 - Vijaysinh Chandubha Jadeja vs. State of Gujarat, and
(iv) 1998 SCC (Crl.) 1516 - Namdi Francis Nwazor vs. Union of India and another.

5. Sri Sinha further argued that no sample was drawn from the article being carried by the applicant which was a mandatory requirement and also there were no independent witnesses to the seizure of the morphine and thus the same vitiates the entire arrest and recovery. It is also argued that the applicant does not have any criminal history and thus deserves to be released on bail. No other ground has been argued.

6. On the ground of Section 50 (1) of the Act of 1985 having been violated at the time of arrest, much emphasis has been placed on the judgments of Hon'ble Apex Court in the cases of Parmanand (supra), S.K. Raju (supra) and Vijaysinh Chandubha Jadeja (supra) to contend that even if for the sake of argument the applicant gave his consent for being searched by the police personnel yet the mandatory requirement of Section 50 (1) of the Act of 1985 is that the applicant should have been informed that it is his right to be searched by a gazetted officer or a magistrate and in the absence of police personnel informing the applicant of such right, the arrest and recovery of morphine are vitiated in the eyes of law.

7. On the other hand, Sri Rao Narendra Singh, learned Additional Government Advocate, on the basis of averments contained in the counter affidavit has argued that the applicant was arrested from a public place. The applicant had been given an option of being searched by either a gazetted officer or by a magistrate under the provisions of Section 50 (1) of the Act of 1985 to which he submitted that he wished to be searched by the police party itself and thus there was consent of the applicant for being searched not by a gazetted officer or the magistrate but by the police personnel themselves. It is thus contended that once the applicant was specifically informed about his right under Section 50 (1) of the Act of 1985 and he waived off his right then at this stage the applicant cannot be allowed to argue that the mandatory provisions of Section 50 (1) of the Act of 1985 not having been complied with, the same would vitiate the arrest and recovery of the morphine. In this regard, Sri Rao has placed reliance on the following judgments:-