Babubhai Odhavji Patel Vs.
State of Gujarat
 Insc 608 (27 October 2005)
K.G. Balakrishnan & B.N.
Srikrishna with Criminal Appeal No. 1132 of 1997 K.G. Balakrishnan, J.
The appellant in Criminal Appeal No. 861 of 1997, along with two others was
tried by the Addl. Sessions Judge, Banaskantha in Gujarat, for the offence
punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as NDPS Act). All the accused were found guilty of the
offence under Section 17 of the NDPS Act. They preferred an appeal before the
High Court of Gujarat and by the impugned judgment the High Court dismissed the
appeal. Aggrieved by the same, the present appeals are filed by the appellants.
The facts of the case are that on 1.7.1989 PSI, L.U. Pandey, along with
other police constables, was on patrol duty in the night of 1.7.1989 and at
about 5.30 A.M., they noticed a tanker lorry bearing registration number GRS
6407 crossing the Palanpur railway crossing line. They signaled the vehicle to be
stopped. The vehicle was stopped and they made a search of the lorry. The
tanker lorry had three cabins. The police team wanted to conduct further search
of the tanker lorry; therefore, they called two Panch witnesses and in their
presence they opened the lid of the first cabin of the tanker with a spanner.
They found a bundle of jute bag and on further search it was found that the
jute bundle contained a dark brown substance which smelled like opium. The
contents were found to weigh more than 5.5 kilograms. The entire quantity was
seized by the police and out of the seized material, 15 grams was taken as a
sample and sent for examination by the forensic science laboratory. It was
found that the seized substance was opium.
The appellant completely denied his involvement and at the trial he alleged
that there was violation of Section 42 of the NDPS Act. The appellant had also
contended that there were procedural irregularities in conducting the search
and sending the sample to the laboratory and in recording the arrest of the
appellant. According to the appellant, all these procedural violations have
caused serious prejudice to the accused and therefore the appellant is entitled
to be released. We have carefully considered the contentions advanced by the counsel
for the appellants and found no merit in the same.
As regards violation of Section 42 of the NDPS Act, it was contended that
PSI, N.U. Pandey had received previous information before going for the search,
but he had not recorded this information anywhere and that he had also not
informed his superior officers about the proposed seizure. In the present case,
the officer who conducted the search was examined as PW-2. What he stated in
the evidence was that the D.I.G. had instructed him that intoxicant materials
were being transported illegally from the States of Rajasthan and Uttar Pradesh
and the vehicles had been passing through Banaskantha district. This was only a
general information given by the D.I.G. to PW-2 and such information is not
bound to be recorded as a source of information as contemplated under Section
42 of the NDPS Act.
Section 42 of the NDPS Act provides that a specific information alone need
be recorded by the officer empowered to conduct a search.
Here, PW-2 and the members of the patrol team were doing the usual patrol
duty and they incidentally came across the tanker lorry in question and on
search recovered the contraband substance from the vehicle. We do not think
that there is any violation of Section 42 of the NDPS Act.
The counsel for the appellant further contended that the search was
conducted at 5.30 A.M., that is before the sunrise and the PSI should have
obtained a warrant or authorization for conducting the search of the vehicle.
This plea also is without any merit. The contraband substance, namely the
opium, was recovered from the tanker when the usual search of suspected
vehicles carrying such contraband was being conducted by the police officials.
The police party had no previous information that any contraband substance was
being concealed in any building, conveyance or enclosed space and they have to
conduct a search pursuant to such information. Then only they would require a
warrant or authorization as contemplated under Section 42 of the NDPS Act. If
it is a chance recovery, the procedure contemplated under Section 42 cannot be
complied with and the evidence of PW-2 would clearly show that it was a chance
The counsel for the appellant would further contend that there was violation
of Section 50 of the NDPS Act as the appellant was searched without being
informed of the option of search before a gazetted officer or judicial
magistrate. It is important to note that no narcotic substance was recovered on
the person of the appellant.
Even if it is assumed that a search was made on the person of the appellant
by PW-2, no evidence in that behalf was made use of by the prosecution to
sustain the charge against the appellant. The counsel for the appellant placed
reliance on State of Punjab vs.
Baldev Singh (1999) 6 SCC 172. That decision has no application to the facts
of the present case and even according to the said decision, if at all there is
any violation of Section 50, it will not vitiate the trial but would render the
recovery of the illicit article suspect.
In the present case no article was found on the person of the appellant but
was recovered from the tanker lorry. Therefore, the recovery itself is not
tainted with any procedural irregularity.
The counsel for the appellant also raised a contention that the seal on the
sample sent to the forensic science laboratory was found tampered with and this
creates a serious suspicion about the report furnished by the laboratory. We
find no substance in this argument either. This aspect of the matter was elaborately
dealt with by the Sessions Court and the appellant had even given up this plea
before the High Court.
The learned counsel further contended that the seized articles were not kept
in proper custody and that there was violation of Sections 52, 55 and 57 of the
NDPS Act. He placed reliance on Valsala v. State of Kerala (1993) 3 Supp. 665.
We do not think that there is much force in this contention. This Court in Gurbax
Singh v. State of Haryana (2001) 3 SCC 28 held that these provisions are not
mandatory provisions and they are only directory.
In the present case, we do not find any serious violation of these
provisions. The prosecution adduced evidence to prove that these provisions
have been substantially complied with and the Sessions Judge discussed these
matters in detail and accepted the prosecution case.
It is proved satisfactorily that the appellant who was the owner of the
tanker lorry in question was found in possession of the narcotic substance
weighing more than 5 kilograms. It is proved that the appellant was using this
vehicle for illegally transporting the narcotic substance. He has rightly been
found guilty by the sessions court and his conviction was rightly upheld by the
High Court. We do not find any merit in the appeal and the same is liable to be
The appellant was released on bail by this court by order dated 15th September, 1997 and there was also an interim stay of realization of the fine in
terms of order dated 25th September, 1997.
The appeal is dismissed and the appellant is directed to surrender before
the authorities within four weeks to undergo the remaining period of the
sentence of imprisonment. He is also liable to pay the fine imposed on him, if
not already paid.
The connected Criminal Appeal No. 1132 of 1997 would also stand dismissed
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