JUDGMENT

Madan B. Lokur, J.

1. The question before us is whether the accidental or chance recovery of narcotic drugs during a personal or body search would attract the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act). In our opinion, the issue is no longer res integra having been answered in the negative by the Constitution Bench in State of Punjab v. Baldev Singh (1999) 6 SCC 172.

The facts:

2. The Respondent Sunil Kumar was travelling in a bus on 9th December, 2000 away from Chamba in Himachal Pradesh. The bus was stopped at Dhundiara Bungalow at about 1.15 p.m. for a 'traffic check' by ASI Joga Singh (PW-13), in-charge of Police Post Banikhet, accompanied by Head Constable Pritam Singh (PW-3), Constable Mazid Mohammad (PW-2) and Constable Des Raj (PW-5) all of whom were acting under the supervision of Gulab Singh (PW-12) the Deputy Superintendent of Police, Dalhousie. A 'traffic check', we were told, means a check for ticketless passengers etc. We were also told that narcotic substances are quite easily available in the Chamba area, but the bus was not stopped for checking the carriage or transportation of any narcotics.

3. Be that as it may, during the check, Constable Mazid Mohammad noticed the passenger occupying seat No. 20 (Sunil Kumar) concealing something under his clothes. Therefore, Sunil Kumar was asked to disembark from the bus and then asked to open his trousers. When he did so, the police officers found a polythene envelope tied below his belly with the help of a "parna" (piece of cloth). The polythene envelope was opened and was found to contain what looked like charas.

4. Steps were taken by the police officers to weigh and seize the item recovered as well as to seal necessary samples for the purpose of examination. We are not concerned with the correctness of this procedure, since there is no dispute about it. Suffice it to say that the item recovered was found to be charas weighing about 2.300 kilos.

5. On these broad facts Sunil Kumar was prosecuted for conscious possession of a narcotic substance and was prosecuted for an offence punishable Under Section 20 of the Act.

Decision of the Trial Court:

6. The Sessions Judge, Chamba Division, Chamba, Himachal Pradesh in Sessions Case No. 9 of 2001 gave a rather detailed judgment and concluded that Sunil Kumar was in conscious possession of a narcotic substance and the recovery thereof was a chance recovery. Accordingly, the provisions of Section 42 of the Act relating to search and seizure were not applicable since the police officials had no prior information about the possession of charas by Sunil Kumar. For arriving at this conclusion, the Trial Judge placed reliance on Baldev Singh.

7. The Sessions Judge in his judgment and order dated 28th November, 2001 found Sunil Kumar guilty of the offence charged and subsequently by an order dated 29th November, 2001 he was sentenced to undergo rigorous imprisonment of 10 years and to pay a fine of Rs. 1 lakh and in default of payment of fine to further undergo simple imprisonment for one year.

Decision of the High Court:

8. Feeling aggrieved, Sunil Kumar preferred Criminal Appeal No. 37 of 2002 before the High Court of Himachal Pradesh. In its decision dated 11th June, 2004 the High Court held that the recovery of charas was not a chance recovery.

9. It was held that though the search conducted was a random search, but the police officers had a positive suspicion that Sunil Kumar might be carrying contraband. It is for this reason that he was asked to get down from the bus and then subjected to a body search. Therefore it was not a chance recovery. According to the High Court, this attracted the provisions of Section 50 of the Act and Sunil Kumar ought to have been given an option of being searched before a Gazetted Officer or a Magistrate in compliance with Section 50 of the Act. Since this option was not given, the conviction and sentence imposed upon Sunil Kumar was not