BABUBHAI ODHAVJI PATEL, ETC. ETC. versus STATE OF GUJARAT

Citation: [2005] SUPP. 4 S.C.R. 844 · Decided: 27-10-2005 · Supreme Court of India · Bench: K.G. BALAKRISHNAN · Disposal: Dismissed

Judgment (excerpt)

'A 
B 
BABUBHAI ODHAVJI PATEL, ETC. ETC. 
v. 
STA TE OF GUJARAT 
OCTOBER 27, 2005 
[K.G. BALAKRISHNAN AND BN. SRIKRISHNA, JJ.] 
Narcotic Drugs and Psychotropic Substances Act, 1985: 
Section 17-0wner of tanker lorry found in possession of contraband 
C substance weighing more than 5 Kgs-He was using the tanker lorry for 
illegally transporting the contraband substance-Conviction by Courts below 
under S.17 held valid. 
Section. 42-D.J. G. had instructed the officer conducting search that 
D intoxicant materials were being transported illegally between the States and 
that vehicles had been passing through a particular district-Police party 
had no previous information that any contraband substance was conc.ealed 
in any building, conveyance or enclosed space and they have to conduct a 
search pursuant to such information-Contraband substance recovered from 
tanker Ion)' when usual search of suspected vehicles carrying such contraband 
E was being conducted by police officials-Held: Only a general information 
was given by the D.J.G-Such information is no(bound to be.recorded as a 
source of information as contemplated under S.42-S.42 provides that specific 
information alone need be recorded by the officer empowered to conduct 
search-It being a case of chance recovery, procedure contemplated under 
S.42 cannot be complied with. 
F 
Section 50-Violation of-Even if made out on facts, would not vitiate 
the trial but would render the recovery of the illicit article suspect-Jn the 
present case no article was found on person of the accused but was recovered 
from the tanker lorry owned by him-Hence, recovery itself is not tainted 
G with any procedural irregularity. 
Police officials while doing usual patrol duty came across a tanker lorry 
and on search recovered contraband substance, namely opium weighing more 
than 5 Kgs from the vehicle. The search was conducted at 5:30 in the morning. 
Appellant, who was the c.wner of the tanker lorry, and two other. accused were 
H 
844 
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BABUBHAI ODHA VJIPATEL v. STATEOFGUJARAT 
845 
found guilty under Section 17 of the NDPS Act. High Court upheld the A 
conviction. 
Questions pertaining to violation of Section 42 and 50 of the NDPS Act 
as also violation of Sections 52, 55 and 57 of the NDPS Act arose for 
consideration in appeals to this Court. 
Dismissing the appeals, the Court 
HELD: 1.1. The officer who conducted the search was examined as PW-
B 
2. What he stated in the evidence was that the D.l.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 C 
Banaskantha district. This was only a general information given by the D.l.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 th.e 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 D 
: ·. 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. There was no violation of Section 42 of the NDPS 
Act. 1848-C, DJ 
1.2. The contention that the search was conducted at 5.30 A.M., that is E 
before the sunrise and the PSI should have obtained a warrant or authori7.ation 
for conducting the search of the vehicle 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 F 
contraband substance was being concealed in any building, conveyance or 
enelosed space and they have to conduct a search pursuant to such information. 
Then only they would require a warrant or authori7.ation 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 recovery. [848-E, F, GJ 
G 
2. With regard to the contention that there was violation of S.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 

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