Important point
Where recovery of narcotic substance is a chance recovery, procedure contemplated u/s 42 NDPS Act cannot be complied with and trial would not be vitiated on that score.

Judgment

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.

2. 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.

3. 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.

4. As regards violation of Section 42 of the NDPS Act, it was contended 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.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.

5. 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, conve