The provisions of section 50 of the N.D.P.S. Act are not attracted in cases of chance recovery.

Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50 - SEARCH AND SEIZURE - CHANCE RECOVERY - COMPLIANCE WITH SECTION 50 NOT REQUIRED - BAIL - DENIED.
Fact of the Case:

The applicant, a foreigner, was charged with possession of 5 grams of charas under section 20(b)(ii) of the N.D.P.S. Act. The charge was framed, and two prosecution witnesses were examined. The applicant filed two bail applications before the Special Judge, which were dismissed. The Special Judge concluded that it was a case of chance recovery and that the provisions of section 50 of the N.D.P.S. Act were not attracted.
Finding of the Court:

The High Court agreed with the Special Judge's conclusion that it was a case of chance recovery and that the provisions of section 50 of the N.D.P.S. Act were not attracted. The Court held that the police had already found the suspected drug in the applicant's bag, and therefore, it was not necessary to inform the applicant that he was to be searched for drugs or to take him to the nearest Gazetted Officer or Magistrate. The Court also noted that the prosecution had already examined two witnesses and that the trial was likely to be over by the middle of the following month.
Issues: 1. Whether the search and seizure was illegal due to non-compliance with section 50 of the N.D.P.S. Act. 2. Whether the applicant should be granted bail.
Ratio Decidendi: 1. The Court held that the search and seizure was not illegal, as it was a case of chance recovery. The Court noted that the police had already found the suspected drug in the applicant's bag, and therefore, it was not necessary to inform the applicant that he was to be searched for drugs or to take him to the nearest Gazetted Officer or Magistrate. 2. The Court held that the applicant should not be granted bail, as the prosecution had already examined two witnesses and the trial was likely to be over by the middle of the following month. The Court also noted that it has been the experience in the State of Goa that more than 90% of the foreigners who are granted bail have jumped bail and are not available for trial.
Final Decision: The Court rejected the applicant's bail application.

JUDGMENT - R.K. BATTA, J.:---The applicant stands charged for possession of 5 grams of charas punishable under section 20(b)(ii) of the N.D.P.S. Act. The charge has already been framed against the accused and two prosecution witnesses have been examined. Two bail applications filed by the applicant before the learned Special Judge have been dismissed. In order dated 6th of April, 1988 passed by the Special Judge under the N.D.P.S. Act, the learned Judge has come to the conclusion that it is a case of chance recovery due to which, prima facie, provisions of section 50 of the N.D.P.S. Act are not attracted in the facts and circumstances of this case. This conclusion is seriously challenged by learned Sr. Advocate Shri Lalit Chari while arguing this application for bail before me.

2.The contention of learned Sr. Advocate for the applicant is that the panchanama of recovery itself shows that it is not a case of random search and seizure and even the Investigating Officer had not considered this to be a case of chance recovery and, on the contrary, an effort/attempt was made to comply with the provisions of section 50 of the N.D.P.S. Act. Nevertheless, it is pointed out that the accused was not informed by the Search Officer that he was to be searched for drugs and in view of the Judgment of this Court in (Shri Sureshkumar Khandelval v. State)1, 1989(2) G.L.T. 1, which is subsequently followed in (Mr. Ilan Pierre Yan Wijnalda v. State)2,, Criminal Appeal No. 5/1997 and in (Shri Murata Chiharu v. State of Goa)3, Criminal Appeal No. 30/1997, the search and seizure is illegal since the accused was never informed that he was to be searched for drugs and the trial is vitiated. In the light of these submissions, it was urged by the learned Sr. Counsel that it cannot be said that there are reasonable grounds to believe that the applicant is guilty of an offence and, as such, bail should not be denied to the applicant at this stage. Reliance was also placed on the Judgment of the Apex Court in (Mohinder Kumar v. The State)4, 1995 Cri.L.J. 2074 (S.C.).

3.On the other hand, learned Public Prosecutor Shri Faria urged before me that the facts of the case disclose that it is a case of chance recovery on account of which the question of compliance with the provisions of section 50 of the N.D.P.S. Act did not arise; that two witnesses have already been examined and the prosecution has to examine two or three more witnesses and the trial of the case is likely to be completed by middle of next month and that in case the applicant, who is a foreigner, is enlarged on bail he will not be available for trial.

4.The case of the prosecution is that lady Police Sub-Inspector Suchita Desai was performing frisking duty at the ladies frisking booth at the international terminal for flights IC-164 and CD-468. While frisking the applicant and on checking her handbag, lady Police Sub-Inspector Suchita Dessai noticed a small plastic transparent packet suspected to be containing a black solid substance as drug. On enquiries made with the applicant by the said lady Police Sub-Inspector, the applicant stated that it was hashish. This statement of lady P.S.I. Suchita Dessai would thus, prima facie, make out a case of chance recovery. While checking the said bag the said lady P.S.I. had already found a small plastic transparent packet which was suspected to contain drug. This recovery once having been made, could not be discovered again and even though the Police Authorities tried to comply with section 50 of the N.D.P.S. Act, the law does not require such compliance in case of chance recovery. What is important is not how the Police Authorities treat the recovery, but how the recovery is to be treated in law. Action replay by the police is of no consequence. I am, prima facie, in agreement with the learned Special Judge that it is a case of chance recovery and the rigour of section 50 of the N.D.P.S. Act would not be, prima facie, attracted. The ruling of the Apex Co

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Judicial Analysis