JUDGMENT

Dr. ARIJIT PASAYAT, J.-- Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge of the Madhya Pradesh High Court, Indore Bench upholding the conviction recorded by a learned Special Judge (NDPS Act), Indore in Special Case No.10/98 convicting the appellant alongwith another accused Aziz Khan for offence punishable under Sections 8 and 21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short `Act') and sentencing each to RI for 10 years and to pay a fine of Rs.1,00,000/- with default stipulation.

3. Background facts in a nutshell are as under:

On 5.19.1997 Superintendent of the Narcotics Department, Shri A.B. Acharya (PW-4) and Inspector Devilal Prajapati (PW-2) proceeded to Mhow Naka. At 8.00 p.m. they checked a bus bearing registration No.MP-09/S-1841, which was going from Indore to Bombay. They informed the driver and conductor of the bus that in regard to the checking of contraband article, they want to check the bus. On inspection they found two persons sitting on seat Nos. 1 and 2. According to the case of the prosecution, the appellant and the co- accused on seeing them became perplexed. After giving notice under Section 50 of the Act they were searched. It is the case of the prosecution that 800 gms. of brown sugar was seized from co-accused Aziz which was kept inside the shoes and 710 gms. of brown sugar was seized from the appellant. After following the requisite formalities, four samples were taken out and they were sent to Chemical Examiner. On receiving the report of the Chemical Examiner, presence of brown sugar was confirmed and a charge sheet was submitted in the Special Court.

4. The Special Judge, after bare perusal of the charge sheet framed charges for offences punishable under Sections 8/21 of the Act. The accused persons pleaded innocence. The Trial Court believed the prosecution version and recorded conviction and imposed sentences. In appeal, High Court confirmed the conviction and sentence.

5. The basic stand of the appellant in the appeal was that there was violation of the provisions of Sections 42 and 50 of the Act. It is submitted that there was also discrepancy in the evidence of the two witnesses about the manner of seizure of the alleged contraband articles.

6. Learned counsel for the respondent on the other hand supported the judgment of the trial Court and the High Court.

7. It is to be noted that this is a case of a chance recovery and Section 42 has no application. It is the case of the prosecution as stated by Shri A.B. Acharya (PW-4) and Devilal Prajapati (PW-2) who were posted as Superintendent and Inspector of Narcotics Department at the relevant point of time that on 5.9.1997 they wanted to make casual inspection. The driver and the conductor were duly informed. On inspection two persons sitting on the seats Nos. 1 and 2 were found suspicious and on being asked they disclosed their names as Aziz Khan and Ram Kumar respectively. Thereafter, they were given both options to be searched in terms of Section 50 of the Act and they consented for their search to be done before P.W.4. Panchanama was prepared. During search 710 gms. of brown sugar was recovered from the appellant which was kept inside the shoes and 800 gms. of brown sugar was recovered from Aziz Khan. On verification and analysis it was found that the seized substance was brown sugar. Statement of both the accused was recorded. The evidence of witnesses clearly established that it was a case of chance recovery in a public place effected during routine checking. The contraband articles were recovered from the exclusive possession of the appellant and the co-accused.

8. Apart from that, the appellant was examined under Section 67 of