STATE OF H.P.versusSUNIL KUMAR

                    [2014] 3 S.C.R. 613


                      STATE OF H.P.                             A
                             v.
                       SUNIL KUMAR
            (Criminal Appeal No. 1101 of 2005)
                      MARCH 5, 2014
                                                                 B
            [RANJANA PRAKASH DESAI AND
                MADAN B. LOKUR, JJ.]

   NARCOTIC   DRUGS                 AND   PSYCHOTROPIC
SUBSTANCES ACT, 1985.                                            C
     s. 50 and s. 20 - 'Chance recovery' - Compliance of s. 50
- Police in routine traffic check for without ticket passengers,
detected accused-appellant in possession of charas - Held:
It was plainly a chance recovery of charas - It was not 0
necessary for police officers to comply with provisions of s.
50 -- Mere suspicion, even if it is 'positive suspicion' or grave
suspicion cannot be equated with 'reason to believe' --
Decision of trial court convicting the accused of an offence ul
s 20 of the Act, upheld.
                                                                  E
     WORDS AND PHRASES:

    Expressions 'chance recovery', 'reason to believe' -
Connotation of in the context of Narcotic Drugs and
Psychotropic Substances Act.                                     F

    The respondent was prosecuted for an offense
punishable u/s 20 of the Narcotic Drugs and Psychotropic
Substances Act, 1985. The prosecution case was that,
while checking a bus, in usual 'traffic check' for ticket less
passengers etc., the respondent was found concealing G
something under his clothes which turned to be 2.300 Kg
of charas. The trial court held that in the circumstances
provisions of s. 42 of the Act relating to search and
                              613
                               j                                 H
    614       SUPREME COURT REPORTS             [2014] 3 S.C.R.

A seizure were not applicable and convicted and
  sentenced the respondent to imprisonment for 10 years
  and to pay a fine of Rs. 1 Lakh. However, the High Court
  held that the recovery of charas was not a chance
  recovery and it attracted the provisions of s. 50 of the act
B and because of non-compliance thereof the conviction
  and the sentence were not justified.

      In the instant appeal filed by the state, the question
  for consideration before the Court was: whether the
C accidental or chance recovery of narcotic drugs during
  a personal or body search would attract the provisions
  of s.50 of the Narcotic Drugs and Psychotrooic
  Substances Act, 1985.

          Allowing the appeal, the Court
D
       HELD: 1.1 In view of the Constitution Bench decision
  in Baldev Singh the personal search of the accused·
  appellant resulting in the recovery of contraband did not
  violate s. 50 of the Narcotic Drugs and Psychotropic
E Substances Act, 1985. [para 11] [619-B]

        State of Punjab v. Baldev Singh 1999 (3) SCR 977=
    (1999) 6 SCC 172; State of Punjab v. Balbir Singh 1994 (2)
    SCR 208 = (1994) 3 SCC 299 - referred to.

F      1.2 The expression 'chance recovery' has not been
  defined anywhere and its plain and simple meaning
  seems to be a recovery made by chance or by accident
  or unexpectedly, as in the instant case, where the
  recovery of contraband may not have been unexpected,
G but the recovery of charas certainly was unexpected
  notwithstanding the submission that drugs are easily
  available in the area. The police officers had no reason
  to believe that the accused was carrying any drugs. It
  was plainly a chance or accidental or unexpected
H recovery of charas • the accused could well have been
          STATE OF H.P. v. SUNIL KUMAR                615

carrying any other contraband such as, smuggled gold, A
stolen property or an illegal firearm or even some other
drug. [para 14, 16] [620-C, G-H; 621-A-B]
     1.3 Mere suspicion, even if it is 'positive suspicion'
or grave suspicion cannot be equated with 'reason to
beli'eve'. These are two completely different concepts. It    8
is this positive suspicion, and not any reason to believe,
that led to the chance recovery of charas from the person
of the accused. The view of the High Court that since the
police officers had a positive suspicion that the accused
was carrying some contraband, therefore, it could be said     C
or assumed that they had reason to believe or prior
information that he was carrying charas or some other
narcotic substance and so, before his personal or body
search was conducted, the provisions of s.50 of the Act
ought to have been complied with, cannot be sustained.        D
The recovery of charas on personal search of the
 accused was clearly a chance recovery and, in view of
 Baldev Singh, it was not necessary for the police officers
 to comply with the provisions of s. 50 of the Act. [para
 19 and 21] [621-F-G; 622-B-D]                                E
    Joti Parshad v. State of Haryana, 1993 Supp (2) SCC
497; and Sheo Nath Singh v. Appellate Assistant CIT (1972)
3 sec 234 - relied on.
    Mohinder Kumar v. State, Panaji Goa (1998) 8 SCC 655;     F
Sorabkhan Gandhkhan Pathan v. State of Gujarat (2004) 13
SCC 608; Bharatbhai Bhagwanjibhai v. State of Gujarat 2002
(3) Suppl. SCR 491 = (2002) 8 SCC 327 - referred to.
     1.4 In the circumstances, the judgment and order
passed by the High Court is set aside and the decision G
of the trial court convicting the accused of an offence u/
s 20 of the Act upheld. [para 22] [622-E-F]
                    Case Law Reference:
     1999 (3) SCR 977             referred to    para 1       H
     616       SUPREME COURT REPORTS                [2014] 3 S.C.R.

A          1993 Supp (2) sec 497        relied on        para 11
           1994 (2) SCR 208             referred to      para 11
           (1998) 8 sec 655             referred to      para 15

B          (2004) 13 sec 608            referred to      para 15
           (1972) 3 sec 234             relied on        para 19
           2002(3) Suppl. SCR 49        referred to      para 20

           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
c No. 1101 of 2005.
        From the Judgment and Order dated 11.06.2004 of the
    High Court of Himachal Pradesh at Shimla in Criminal Appeal
    No. 37 of 2002.
D
        Suryanarayana Singh, Addi. AG, Pragati Neekhra for the
    Appellant.

           Debasis Misra, R.P. Vyas (AC) for the Respondent.

E          The Judgment of the Court was delivered by

         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
F   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. Ba/dev
    Singh. 1

G 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 Dhuncfiara Bungalow at about 1.15
H   1.   (1999) 6 sec 172.
           STATE OF H.P. v. SUNIL KUMAR                     617
               [MADAN B. LOKUR, J.]

p.m. for a 'traffic check' by ASI Joga Singh (PW-13), in-charge     A
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 Guiab Singh (PW-12) the Deputy
Superintendent of Police, Dalhousie. A 'traffic check', we were     B
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        C
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   D
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       E
for tile 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         F
conscious possession of a narcotic substance and was
prosecuted for an offence punishable under Section 20 of the
Act.

Decision of the Trial Court:                                        G

     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             H
     618       SUPREME COURT REPORTS               [2014] 3 S.C.R.


A 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
B 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,
C 2001 he was sentenced to undergo rigorous imprisonment of
  1O 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:
D
         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. 2
E      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
F 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
G imposed upon Sunil Kumar was not justified.
         10. Accordingly, the appeal filed by Sunil Kumar was
    allowed by the High Court.

H   2.   MANU/HP/0123/2004.
                   STATE OF H.P. v. SUNIL KUMAR                    619
                       [MADAN B. LOKUR, J.]




I..
      Chance recovery:                                                    A
           11. The State is in appeal against the acquittal of Sunil
      Kumar and the broad submission is that the recovery of charas
      from him was a chance recovery. Under these circumstances,
      in view of the Constitution Bench decision in Baldev Singh
                                                                          B
      which endorsed the view taken in State of Punjab v. Balbir
      Singh 3 the personal search of Sunil Kumar resulting in the
      recovery of contraband did not violate Section 50 of the Act.
      Reliance was placed by learned counsel on paragraph 25 in
      Balbir Singh which was also endorsed by the Constitution
      Bench. It was submitted that it is only after a chance or           c
      accidental recovery of any narcotic drug or, psychotropic
      substance by any police officer that the provisions of the Act
      would come into play. It is then that the empowered officer
      should be informed and that empowered officer should
      thereafter proceed to investigate the matter in accordance with     D
      the provisions of the Act.

          12. The relevant extract of paragraph 25 of Balbir Singh
      reads as follows:
                                                                          E
            "(1) If a police officer without any prior information as
            contemplated under the provisions of the NDPS Act makes
            a search or arrests a person in the normal course of
            investigation into an offence or suspected offences as
            provided under the provisions of CrPC and when such
            search is completed at that stage Section 50 of the NDPS      F
            Act would not be attracted and the question of complying
            with the requirements thereunder would not arise. If during
            such search or arrest there is a chance recovery of any
            narcotic drug or psychotropic substance then the police
            officer, who is not empowered, should inform the              G
            empowered officer who should thereafter proceed in
            accordance with the provisions of the NDPS Act. If he
            happens to be an empowered officer also, then from that
      3.   (1994) 3 sec 299.
                                                                          H
    620       SUPREME COURT REPORTS                  [2014] 3 S.C.R.

A         stage onwards, he should carry out the investigation in
          accordance with the other provisions of the NDPS Act."

       13. In view of the opinion expressed by the Trial Court and
  the High Court, we need to firstly understand what a 'chance
  recovery' is. The next question would be whether the provisions
8 of Section 50 of the Act would apply when there is a chance
  recovery.

        14. The expression 'chance recovery' has not been
  defined anywhere and its plain and simple meaning seems to
c be a recovery made by chance or by accident or unexpectedly.
  In Mohinder Kumar v. State, Panaji, Goa 4 this Court
  considered a chance recovery as one when a police officer
  "stumbles on" narcotic drugs when he makes a search. In
  Sorabkhan Gandhkhan Pathan v. State of Gujarat5 the police
0 officer, while searching for illicit liquor, accidentally found some
  charas. This was treated as a 'chance recovery'.

       15. Applying this to the facts of the present appeal, it is
  clear that the police officers were looking for passengers who
  were travelling ticketless and nothing more. They accidentally
E or unexpectedly came across drugs carried by a passenger.
  This can only be described as a recovery by chance since they
  were neither looking for drugs nor expecting to find drugs
  carried by anybody.

F      16. It is not possible to accept the view of the High Court
  that since the police officers conducted a random search and
  had a "positive suspicion" that Sunil Kumar was carrying
  contraband, the recovery of charas from his person was not a
  chance recovery. The recovery of contraband may not have
G been unexpected, but the recovery of charas certainly was
  unexpected notwithstanding the submission that drugs are
  easily available in the Chamba area. The police officers had
  no reason to believe that Sunil Kumar was carrying any drugs
    4.   (1998) 8 sec 655.
H 5. c2004) 13 sec 608.
            . STATE OF H.P. v. SUNIL KUMAR                          621
                  [MADAN B, LOKUR, J.]
and indeed that is also not the case set up in this appeal. It A
was plainly a chance or accidental or unexpected recovery of
charas - Sunil Kumar could well have been carrying any other
contraband such as, smuggled gold, stolen property or an illegal
firearm or even some other drug.
                                                                 B
      17. We are not going into the issue whether the personal
or body search of Sunil Kumar (without a warrant) was at all
permitted by law under these circumstances. That was not an
issue raised or canvassed before the Trial Court or the High
Court or even before us, although it has been adverted to in C
the written submissions by learned counsel assisting us on
behalf of Sunil Kumar.

Applicability of Section 50 of the Act:

     18. As far as the applicability of Section 50 of.the Act in a           o
chance recovery is concerned, the issue is no longer res integra
in view of the decision of the Constitution Bench in Ba/dev
Singh.
      19. It is true that Sunil Kumar behaved in a suspicious
 manner which resulted in his personal search being conducted E
·after he disembarked from the bus. However, there is no
 evidence to suggest that before he was asked to alight from
 the bus, the police officers were aware that he was carrying a
 narcotic drug, even though the Chamba area may be one where
 such drugs are easily available. At best, it could be said the F
 police officers suspected Sunil Kumar of carrying drugs and
 nothing more. Mere suspicion, even if it is 'positive suspicion'
 or grave suspicion cannot be equated with 'reason to believe'. 6
 These are two completely different concepts. It is this positive
 suspicion, and not any reason to believe, that led to the chance G
 recovery of charas from the person of Sunil Kumar.
      20. Similarly, the positive suspicion entertained by the

 6.   Joti Parshad v. State Of Haryana, 1993 Supp (2) Supp (2) sec 497 and   H
      Sheo Nath Singh v. Appellate Assistant CIT, (1972) 3 SCC 234.
    622         SUPREME COURT REPORTS                        [2014] 3 S.C.R.

A   police officers cannot be equated with prior information. 7 The
    procedure to be followed when there is prior information of the
    carrying of contraband drugs is laid down in the Act and it is
    nobody's case that that procedure was followed, let alone
    contemplated.
B
       21. We are not in <'']reement with the view of the High
  Court that since the police officers had a positive suspicion that
  Sunil Kumar was carrying sorr~ contraband, therefore, it could
  be said or assumed that they ·had reason to believe or prior
C information that he was carrying charas or some other narcotic
  substance and so, before his personal or body search was
  conducted, the provisions of Section 50 of the Act ought to have
  been complied with. The recovery of charas on the body or
  personal search of Sunil Kumar was clearly a chance recovery
  and, in view of Baldev Singh, it was not necessary for the
D police officers to comply with the provisions of Section 50 of
  the Act.
    Conclusion:

E        22. Under the circumstances, we set aside the judgment
    and order passed by the High Court and uphold the decision
    of the Trial Court convicting Sunil Kumar for an offence
    punishable under Section 20 of the Act. Necessary steps be
    taken to apprehend Sunil Kumar to serve out the remainder of
    his sentence.
F
           23. The appeal is allowed.
    R.P.                                                   Appeal allowed.




    7.   Bharatbhai Bhagwanjibhai v. State of Gujarat, (2002) 8 SCC 327.