Holding

A chance recovery of narcotics during a routine patrol does not require compliance with the specific procedural requirements of Sections 42, 50, 52, 55 and 57 of the NDPS Act, and therefore the conviction under Section 17 stands.

Summary

The appellant, owner of a tanker lorry, was stopped by police on routine patrol at 5:30 a.m. and a search revealed over 5 kg of opium concealed in the vehicle. He was convicted under Section 17 of the NDPS Act. On appeal, he challenged the validity of the search under Sections 42 and 50 of the NDPS Act, alleged tampering of the forensic sample seal, and claimed violations of Sections 52, 55 and 57 concerning custody of the seized material. The Supreme Court held that the information leading to the search was only general and, as a chance recovery, did not require the specific procedural safeguards of Section 42, nor a warrant. It further observed that any breach of Section 50 would not vitiate the trial as no narcotics were recovered from the appellant’s person, and that the custody provisions are directory and were substantially complied with. Consequently, the conviction under Section 17 was upheld and the appeals dismissed.

Issues considered

The adequacy of the information recorded under Section 42 of the NDPS Act for a search conducted during a routine patrol.
Whether a search conducted before sunrise without a warrant violates Section 42.
The effect of a breach of Section 50 (search without informing of the option before a gazetted officer or magistrate) on the admissibility of the seized narcotics.
The impact of alleged tampering of the seal on the forensic sample on the reliability of the laboratory report.
The consequences of non‑compliance with Sections 52, 55 and 57 (custody and chain of evidence) of the NDPS Act.
The liability of the vehicle owner under Section 17 for possession of narcotics found in his vehicle.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 17, s. 42, s. 50, s. 52, s. 55, s. 57

Subjects

NDPS Actsearch and seizureSection 42Section 50possessionnarcoticsprocedural complianceevidence admissibilitychain of custody

Judgment

'A BABUBHAI ODHAVJI PATEL, ETC. ETC.
v.
STA TE OF GUJARAT

OCTOBER 27, 2005

B [K.G. BALAKRISHNAN AND BN. SRIKRISHNA, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985:
..
Section 17-0wner of tanker lorry found in possession of contraband
C substance weighing more than 5 Kgs-He was using the tanker lorry for
illegally transporting the contraband substance-Conviction by Courts below
under S.17 held valid.

Section. 42-D.J. G. had instructed the officer conducting search that
D intoxicant materials were being transported illegally between the States and
that vehicles had been passing through a particular district-Police party
had no previous information that any contraband substance was conc.ealed
in any building, conveyance or enclosed space and they have to conduct a
search pursuant to such information-Contraband substance recovered from
tanker Ion)' when usual search ofsuspected vehicles carrying such contraband
E was being conducted by police officials-Held: Only a general information
was given by the D.J.G-Such information is no(bound to be.recorded as a
source of information as contemplated under S.42-S.42 provides that specific
information alone need be recorded by the officer empowered to conduct
search-It being a case of chance recovery, procedure contemplated under
S.42 cannot be complied with.
F
Section 50-Violation of-Even if made out on facts, would not vitiate
the trial but would render the recovery of the illicit article suspect-Jn the
present case no article was found on person of the accused but was recovered
from the tanker lorry owned by him-Hence, recovery itself is not tainted
G with any procedural irregularity.
Police officials while doing usual patrol duty came across a tanker lorry
and on search recovered contraband substance, namely opium weighing more
than 5 Kgs from the vehicle. The search was conducted at 5:30 in the morning.
Appellant, who was the c.wner of the tanker lorry, and two other. accused were
H 844
BABUBHAI ODHA VJIPATEL v. STATEOFGUJARAT 845
found guilty under Section 17 of the NDPS Act. High Court upheld the A
conviction.

Questions pertaining to violation of Section 42 and 50 of the NDPS Act
as also violation of Sections 52, 55 and 57 of the NDPS Act arose for
consideration in appeals to this Court.
B
Dismissing the appeals, the Court

HELD: 1.1. The officer who conducted the search was examined as PW-
2. What he stated in the evidence was that the D.l.G. had instructed him that
intoxicant materials were being transported illegally from the States of
Rajasthan and Uttar Pradesh and the vehicles had been passing through C
Banaskantha district. This was only a general information given by the D.l.G.
to PW-2 and such information is not bound to be recorded as a source of
·information as contemplated under Section 42 of the NDPS Act. Section 42
of th.e NDPS Act provides that a specific information alone need be recorded
by the officer empowered to conduct a search; Here, PW-2 and the members D
:·. of the patrol team were doing the usual patrol duty and they incidentally came
, across the tanker lorry in question and on search recovered the contraband
··:.substance from the vehicle. There was no violation of Section 42 of the NDPS
Act. 1848-C, DJ

1.2. The contention that the search was conducted at 5.30 A.M., that is E
before the sunrise and the PSI should have obtained a warrant or authori7.ation
for conducting the search of the vehicle is without any merit. The contraband
substance, namely the opium, was recovered from the tanker when the usual
search of suspected vehicles carrying such contraband was being conducted
by the police officials. The police party had no previous information that any F
contraband substance was being concealed in any building, conveyance or
enelosed space and they have to conduct a search pursuant to such information.
Then only they would require a warrant or authori7.ation as contemplated under
Section 42 of the NDPS Act. If it is a chance recovery, the procedure
contemplated under Section 42 cannot be complied with and the evidence of
PW-2 would clearly show that it was a chance recovery. [848-E, F, GJ G
2. With regard to the contention that there was violation of S.50 of the
NDPS Act as the appellant was searched without being informed of the option
of search before a Gazetted Officer or Judicial Magistrate, it is important to
note that no narcotic substance was recovered on the person of the appellant. H
846 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A Even if it is assumed that a search was made on the person of the appellant by
PW-2, no evidence in that behalf was made use of by the prosecution to sustain.
the charge against the appellant. If at all there is any violation of Section 50,
it will not vitiate the trial but would render the recovery of the illicit article
suspect. In the present case no article was found on the person of the appellant
B but was recovered from the tanker lorry. Therefore, the recovery itself is not
tainted with any procedural irregularity. (848-H; 849-A, Bl

State of Punjab v. Baldev Singh, (1999[ 6 SCC 172, distinguished

3. The contention that the seal on the sample sent to the forensic science
C laboratory was found tampered with and this creates a serious suspicion about
the report furnished by the laboratory is also without any substance. This
aspect of,the matter was elaborately dealt with by the Sessions Court and the
appellant had even given up this plea before the High Court. (849-C[

4. The further contention that the seized articles were not kept in proper
D custody and that there was violation of Sections 52, 55 and 57 of the NDPS
Act is also without any force. This Court in an earlier decision held that these
provisions are not mandatory and are only directory. In the present case, no
serious violation of these provisions is found. The prosecution a~duced
evidence to prove that these provisions have been substantially complied with
and the Sessions Judge discussed these matters in detail and accepted the
E prosecution case. (849-D, El

Gurbax Singh v. State of Hmyana, !2001 [ 3 SCC 28 and Valsa/a v. State
of Kera/a, (1993) 3 Supp. 665, referred to.

5. It is proved satisfactorily that the appellant who was the owner of the
F tanker lorry in question was found in possession of the narcotic substance
.weighing more than 5 kilograms. It is proved that the appellant was using
this vehicle for illegally transporting the narcotic substance. He has rightly
been found guilty by the Sessions Court and his conviction was rightly upheld
by the High Court. (849-F, G l
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 861 of
1997.

From the Judgment and Order dated 30.1.97 of the Gujarat High Court.
in Crl.A. No. 32 of 1991.
H
BABUBHAIODHA VJI PATEL 1•. STATEOFGUJARA T[BALAKRISHNAN, l.] 847
0

WITH A
Crl.A. No. 1132of1997.

Sushi! Kurar, Mrs. Saroj H. Raichura, Sanjay Jain, Adolf Mathew, Vinay
Arora, Ravi P. Wadhwani, H.A. Raichura and Ms. Asha Gopalan Nair for the
Appellants. B
Maulik Nanavati, Ms. Archna Palkar-Khopde and Ms. Hemantika Wahi
for the Respondent.

The Judgment of the Court was delivered by

K.G. BALAKRISHNAN, J. The appellant in Criminal Appeal No. 861 of
c
1997, along with two others was tried by the Addi. Sessions Judge, Banaskantha
in Gujarat, for the offence punishable under the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). All
the accused were found guilty of the offence under Section 17 of the NDPS
Act. They preferred an appeal before the High Court of Gujarat and by the D
impugned judgment the High Court dismissed the appeal. Aggrieved by the
same, the present appeals are filed by the appellants.

The facts of the case are that on 1.7.1989 PSI, L.U. Pandey, along with
other police constables, was on patrol duty in the night of 1.7.1989 and at
about 5.30 A.M., they noticed a tanker lorry bearing registration number GRS E
6407 crossing the Palanpur railway crossing line. They signaled the vehicle
to be stopped. The vehicle was stopped and they made a search of the lorry.
The tanker lorry had three cabins. The police team wanted to conduct further
search of the tanker lorry; therefore, they called two Panch witnesses and in
their presence they opened the lid of the first cabin of the tanker with a p
spanner. They found a bundle of jute bag and on further search it was found
that the jute bundle contained a dark brown substance which smelled like
opium. The contents were found to weigh more than 5.5 kilograms. The entire
quantity was seized by the police and out of the seized material, 15 grams was
taken as a sample and sent for examination by the forensic science laboratory.
It was found that the seized substance was opium. G
The appellant completely denied his involvement and at the trial he
. alleged that there was violation of Section 42 of the NDPS Act. The appellant
had also contended that there were procedural irregularities in conducting the
search and sending the sample to the laboratory and in recording the arrest H
848 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
"
A of the appellant. According to the appellant, all these procedural violations
have caused serious prejudice to the accused and therefore the appellant is
entitled to be released. We have carefully considered the contentions advanced
by the counsel for the appellants and found no merit in the same.

As regards violation of Section 42 of the NDPS Act, it was contended
B that PSI, N.U. Pandey had received previous information before going for the
search, but he had not recorded this information anywhere and that he had
also not informed his superior officers about the proposed seizure. In the
present case, the officer who conducted the search was examined as PW-2.
What he stated in the evidence was that the D.l.G. had instructed him that
C intoxicant materials were being transported illegally from the States of Rajasthan
and Uttar Pradesh and the vehicles had been passing through Banaskantha
district. This was only a general information given by the D.l.G. to PW-2 and
such information is not bound to be recorded as a source of information as
contemplated under Section 42 of the NDPS Act. Section 42 of the NDPS Act
provides that a specific information alone need be recorded by the officer
D empowered to conduct a search. Here, PW-2 and the members of the patrol
team were doing the usual patrol duty and they incidentally came across the
tanker lorry in question and on search recovered the contraband substance
from the vehicle. We do not think that there is any violation of Sectio,n 42
of the NDPS Act.

E The counsel for the appellant further contended that the search was
conducted at 5.30 A.M., that is before the sunrise and the PSI should have
obtained a warrant or authorization for conducting the search of the vehicle.
This plea also is without any merit. The contraband substance, namely the
opium, was recovered from the tanker when the usual search of suspected
p vehicles carrying such contraband was being conducted by the police officials.
The police party had no previous information that any contraband substance
was being concealed in any building, conveyance or enclosed space and they
have to conduct a search pursuant to such information. Then only they
would require a warrant or authorization as contemplated under Section 42 of
the NDPS Act. If it is a chance recovery, the procedure contemplated under
G Section 42 cannot be complied with and the evidence of PW-2 would clearly
show that it was a chance recovery.

The counsel for the appellant would further contend that there was
violation of Section 50 of the NDPS Act as the appellant was searched
H without being informed of the option of search before a gazetted officer or
BABUBHAI ODHAVJI PATEL v. STATEOFGUJARA T[BALAKRISHNAN,J.] 849

judicial magistrate. It is important to note that no narcotic substance was A
recovered on the person of the appellant. Even if it is assumed that a search
was made on the person of the appellant by PW-2, no evidence in that behalf
was made use of by the prosecution to sustain the charge against the
• appellant The counsel for the appellant placed reliance on State of Punjab
v. Baldev Singh, [1999] 6 SCC 172. That decision has no application to the
facts of the present case and even according to the said decision, if at all B
there is any violation of Section 50, it will not vitiate the trial but would render
the recovery of the illicit article suspect. In the present case no article was
found on the person of the appellant but was recovered from the tanker lorry.
Therefore, the recovery itself is not tainted with any procedural irregularity.

The counsel for the appellant also raised a contention that the seal on
c
,.. the sample sent to the forensic science laboratory was found tampered with
and this creates a serious suspicion about the report furnished by the
laboratory. We find no substance in this argument either. This aspect of the
matter was elaborately dealt with by the Sessions Court and the appellant had
even given up this plea before the High Court. D
The learned counsel further contended that the seized articles were not
kept in proper custody and that there was violation of Sections 52, 55 and
57 of the NDPS Act He placed reliance on Valsala v. State of Kera/a, (1993~
3 Supp. 665. We do not think that there is much force in this contention. This
Court in Gurbax Singh v. State of Haryana, [2001] 3 SCC 28 held that these E
provisions are not mandatory provisions and they are only directory. In the
present case, we do not find any serious violation of these provisions. The
prosecution adduced evidence to prove that these provisions have been
substantially complied with and the Sessions Judge discussed these matters
in detail and accepted the prosecution case. F
It is proved satisfactorily that the appellant who was the owner of the
tanker lorry in question was found in possession of the narcotic substance
weighing more than 5 kilograms. It is proved that the appellant was using this
vehicle for illegally transporting the narcotic substance. He has rightly been
found guilty by the sessions court and his conviction was rightly upheld by G
the High Court. We do not find any merit in the appeal and the same is liable
to be dismissed.

The appellant was released on bail by this court by order dated 15th
September. 1997 and there was also an interim stay of realization of the fine
in terms of order dated 25th September, 1997. The appeal is dismissed and the H
850 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A appellant is directed to surrender before the authorities within four weeks to
undergo the remaining period of the sentence of imprisonment. He is also
liable to pay the fine imposed on him, if riot already paid.

The connected Criminal Appeal No. 1132 of 1997 would also stand •
dismissed accordingly.
B
B.B.B. Appeals dismissed.

·,