(V.K. Ahuja, J.) - This is an appeal filed by the appellant against the judgment of the Court of learned Additional Sessions Judge, Fast Track, Kullu dated 16.8.2005, vide which the appellant was held guilty under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the N.D.P.S. Act and was sentenced as under :-

“Rigorous imprisonment for nine years, fine of Rs. 90,000/- (ninety thousand) and in default of payment of fine, further simple imprisonment for a period of one year.”

2.Briefly stated the facts of the case are that on 27.11.2003, at 8.00 a.m., PW-8 SI/SHO Daya Sagar alongwith other police officials was present near Ghiyagi Bridge in connection with patrol and detection of crime. A maruti car came there from Sojha side. It was stopped and its documents were demanded from the driver. The vehicle was being driven by the appellant and one Munish Kumar alias Sonu was sitting by his side and two other accused Babar Ali and Kamaljit were sitting in the rear seat of the car. It was an isolated place, therefore, two police officials, namely, ASI Lekh Ram and ASI Narain Singh alongwith SHO were associated and the personal search of the accused, one polythene packet containing in the shape of sticks and ball was recovered. The same was weighed and it was found to be 900 grams. Two samples of 25 grams each were taken which were sent for analysis and after completion of the investigation, the challan was filed as against the appellant, driver of the car, as well as three other occupants of the car.

3.The learned trial Court framed a charge under Section 20 read with Section 29 of the NDPS Act and tried the appellant and his other companions. The appellant was held guilty under Section 20 of the Act and was convicted and sentenced as detailed above, while the other occupants of the car were acquitted of the charge framed against them.

4.I have heard Mr. Anup Chitkara, Advocate, for the appellant and Mr. J.S. Guleria, learned Law Officer, for the respondent and have carefully gone through the record of the case.

5.The main submission made by the learned Counsel for the appellant was that there was non compliance of the provisions of Section 50 of the Act which was mandatory. The second plea taken was that in view of the Division Bench decision of this Court which shall be referred below, the sentence imposed upon the appellant deserves to be reduced considerably.

6.Coming to the first plea taken by the learned Counsel for the appellant, it is clear that it was not a case of prior information to the police but it was a case of chance recovery insofar as the appellant is concerned. this plea was also taken before the learned trial Court that the provisions of Section 50 of the Act were not complied with since there was no option given to the appellant to get his search conducted before a Magistrate or a Gazetted Officer. In considering this question, the learned trial Court had referred to the statements of the Investigating Officer and other witnesses and after referring to some decisions of the Apex Court had concluded that since it was a case of chance recovery, the provisions of Section 50 of the Act were not attracted to the present facts.

7.I may make a reference to the statement of PW8 SI/SHO Daya Sagar, who during course of cross-examination had specifically stated that he was present in the area in connection with patrolling and detention of crime. He stated in the cross-examination that the search of the accused was taken on suspicion of some theft property or keys etc. but he was not suspecting charas in his possession. He further stated that about 10-12 theft cases had taken place in his jurisdiction in one month. He does not remember how many F.I.Rs. were registered about such theft. The mere fact that he has not been able to substantiate the F.I.R. numbers of their details is not sufficient to hold that his statement cannot be relied upon. He h