The provisions of the NDPS Act are special and all offences under it are to be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the Act. The provisions of the CrPC apply only to the extent they are not inconsistent with the provisions of the NDPS Act.

Bhawani Singh, A. C. J.—Certain provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter shortly the Act) came for consideration before the Division Bench of this Court in State of Himachal Pradesh v. Sudarshan Kumar etc , 1989 Cri. L. J. 1412. In these cases the accused had either been discharged since the prosecution had failed to produce the notifications under Sections 41 or 42 and/or the trial Court had found that the provisions of Sections 50 and 55 of the Act had not been complied with although they were mandatory in nature- In some cases, the accused had been convicted and sentenced to the minimum rigorous imprisonment prescribed under the Act and the decisions had been assailed on merits. In these cases also it had been submitted that the mandatory provisions of the Act had not been complied with and the convictions were liable to be set-aside.

2. The matter was examined quite exhaustively and it was held that the provisions of Sections 41 (2), 42 (2) and 50 (1> of the Act are mandatory innature, in case the investigation is started on the basis of an advance information. Similarly, Sections 52 (1) and 57 of the Act were also found mandatory in character but Sections 52 (2), 52 (3) and 55 of the Act were held directory, unless miscarriage of justice to the accused was there.

3. Although, as noticed above, the Bench had before it cases detect ed on the basis of prior information, but it discussed cases of chance recovery. It is important to reproduce the opinion of the Court on this question (at page 1418 of Cr. L. J.) "The possibility of recovery of such articles without there being any advance information cannot be overruled. In fact, it certainly exists. For example, a member of the Central Reserve Police Force looking for illicit arms and ammunition or a member of the Armed Forces in a border engagement may hit upon such a chance recovery. It will be too much to say that such a recovery would not constitute an offence under the Narcotic Act. Take another instance. A designated officer of Police Department conducting search for stolen property in a theft case, illicit liquor or arms may happen to recover smack, brown powder, heroin, opium, Charas etc. Can the prosecution case be faulted on the short ground of non-compliance of the provisions of Section 50 of the Narcotic Act? The answer has to be in a firm negative. Therefore, the upshot of the above discussion is that only a designated officer having advance information is under a legal obligation to comply with Section 50. It also follows as a necessary corollary that only such an officer can take in writing the grounds of his personal knowledge or information given by any person that some one has committed an offence under the Narcotic Act, as postulated under Section 41 (2) and Section 42 (1) and further record the grounds of his belief under proviso to Section 42 (1) and, once again, it is only such an officer who is required to send a copy of information under Section 42 (I) and ground of belief forthwith to his immediate official superior (see sub-section (2) of Section 42). In case of situation not specifically covered as outlined above, there could be no question of complying with the aforesaid provisions. Such cases will be.obviously enough, governed by the provisions of the Criminal Procedure Code and the accused, if found guilty liable to be convicted under the Narcotic Act."

4. The question answered hereinabove was not directly raised before the Court in any of the cases before it but the Court took note of circumstances where the contraband is detected all of a sudden or on suspicion or while investigating some other kind of cases, These are named chance recovery cases. The question was whether in such a case the prosecution case could be faulted on the ground of non-compliance of the provisions of Section 50 of the Act and it was held that it would not The learned Judges held that it is only a designated officer having a