AI Drafter 
TaxTMI 
TaxTMI 
2014 (3) TMI 1164
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....e 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. State Of Punjab v. Baldev Singh., 1999 6 SCC 172. The facts 2. The respondent, Sunil Kumar was travelling in a bus on 9-12-2000 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 Superintenden....
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....f 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 28-11-2001 found Sunil Kumar guilty of the offence charged and subsequently by an order dated 29-11-2001 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 aggriev....
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....tion Bench. It was submitted that it is only after a chance or 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 the provisions of the Act. 11. The relevant extract of para 25 of Balbir Singh reads as follows: (SCC pp. 320-21) "(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 ....
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.... were looking for passengers who were travelling ticketless and nothing more. They accidentally 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. 15. 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 been unexpected, but the recovery of charas certainly was unexpected notwithstanding the submission that drugs are easily available in the Chamba area. The ....
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....icion, 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 recovery of charas from the person of Sunil Kumar. 19. Similarly, the positive suspicion entertained by the 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. 20. We are not in agreement with the view of the High Court that since the police officers had a positive suspicion that Sunil Kumar w....