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CASE NO.: Appeal (crl.)  861 of 1997

PETITIONER: Babubhai Odhavji Patel, etc. etc.                                

RESPONDENT: State of Gujarat                                                         

DATE OF JUDGMENT: 27/10/2005

BENCH: K.G. Balakrishnan &  B.N. Srikrishna

JUDGMENT: J U D G M E N T WITH

CRIMINAL APPEAL NO. 1132 OF  1997

K.G. BALAKRISHNAN, J.   

       The appellant in Criminal Appeal No. 861 of 1997,  along with  two others was tried by the Addl. 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 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 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  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.

       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 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 that PSI, N.U. Pandey had received previous information

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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.I.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 Banaskantha  district.    This was only a general information given by the D.I.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 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 Section 42 of  the NDPS Act.

       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 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 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 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.    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 vs.  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 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 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.     

       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 Kerala (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

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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.

       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 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 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 not already paid.

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