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2014 DIGILAW 306 (CHH)

Chitaranjan Mandal v. State of Chhattisgarh

2014-08-14

SANJAY K.AGRAWAL

body2014
JUDGMENT Sanjay K. Agrawal, J. 1. Invoking the appellate jurisdiction of this Court under Section 374(2) of the Code Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), appellant herein Chitaranjan Mandal has preferred this statutory appeal against the judgment of conviction and order of sentence dated 27-1-2003 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act'), Bestar at Jagdalpur in Special Case No. 39/2002, whereby and whereunder the appellant has been convicted for commission of an offence punishable under Section 20(b)(ii)(B) of the NDPS Act and sentenced to undergo rigorous imprisonment for four years and six months and to pay fine of Rs. 20,000/-, in default of payment of fine amount, to undergo additional rigorous imprisonment for one year. The prosecution case in brief as unfolded during the course of trial is as under:-- 1.1 On 20-9-2002, Mohan Lal Pandey (PW-4), Assistant Sub-Inspector, Police Station Dornapal after making endorsement of his departure in Rojnamcha Sanha No. 634 (Exhibit P- 10C) along with member of his staff went to village Manikonta for investigation of Crime No. 28/2002 registered for the offence punishable under Sections 279 and337 of the Indian Penal Code. 1.2 It is further case of the prosecution that on the said day i.e. on 20-9-2002, while the police party was coming back from village Manikonta, near cremation ground of village Penta, they saw that the appellant-Chitaranjan Mandal along with one suitcase standing on the road, and when they went near the appellant, the accused/appellant seeing the police party, he got scared and tried to move away from the spot. Upon this, he was nabbed by the police and upon examination of suitcase, smell of some contraband like ganja (Cannabis) was coming out from the suitcase. Then, he was given notice Exhibit P-2 under Section 50 of the NDPS Act to get himself searched either before a Magistrate or before a Gazetted Officer. Mohan Lal Pandey (PW-4) and other members of the staff gave search of themselves to the appellant vide Exhibit P-3. Then, the appellant gave his consent and agreed for search by the police officer and thereafter, the Panchnama of suitcase was made vide Exhibit P-4 and recovered item was identified as Ganja (Cannabis) vide Exhibit P-5. Mohan Lal Pandey (PW-4) and other members of the staff gave search of themselves to the appellant vide Exhibit P-3. Then, the appellant gave his consent and agreed for search by the police officer and thereafter, the Panchnama of suitcase was made vide Exhibit P-4 and recovered item was identified as Ganja (Cannabis) vide Exhibit P-5. They arranged the weighing machine and its identification vide Exhibit P-6, thereafter, steps were taken by the Police Officers to weigh the article, they found 9 kg. of Ganja (Cannabis). Out of the said contraband, two packets of 25-25 grams were taken out as sample and rest of the contraband sealed vide Panchnama Exhibit P-7. The said seizure was made in presence of witnesses i.e. Suresh Singh Chouhan (PW-2) and Suryapal Singh (PW-3) Vide Exhibit P-8. Thereafter, the appellant was arrested vide Exhibit P-9. First Information Report was registered on 20-9-2002 at 18:46 hours vide Exhibit P-13 for the commission of offence under Section 8/20(Kha) of the NDPS Act and an information was given to the Additional Superintendent of Police, Sukma, District Dantewada under Section 57 of the NDPS Act vide Exhibit P-15 on 21-9-2002. The sample of seized article (Ganja) was sent for its chemical analysis vide Exhibit P-18, and the report dated 30-9-2002 was received from the Chemical Analyst vide Exhibit P-20, in which, seized article was found to be Ganja, which is Cannabis within the meaning of Section 2(iii)(b) of the NDPS Act. Thereafter, a charge-sheet was filed against the appellant for commission of the offence punishable under Section 20(b)(ii)(B) of NDPS Act for possession of 9 kg. Ganja (Cannabis). 1.3 Statement of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of the investigation, charge-sheet was filed under Section 20(b)(ii)(B) of the NDPS Act against the appellant before the Special Judge under NDPS Act, Jagdalpur. 1.4 Appellant/accused denied the charges and entered into defence by stating that prosecution case is out and out false and he has been falsely implicated in the offence in question. 1.4 Appellant/accused denied the charges and entered into defence by stating that prosecution case is out and out false and he has been falsely implicated in the offence in question. 1.5 In order to bring home the offence, the prosecution examined five witnesses in all, namely, PW-1 Dayaluram Markam, Head Constable, Police Station Dornapal, PW-2 Suresh Singh Chouhan, a witness of seizure memo, PW-3 Suryapal Singh, another witness of seizure memo, PW-4 Mohan Lal Pandey, Assistant Sub-Inspector, Police Station Dornapal, who made seizure and PW-5 D.N. Nagwanshi, Sub-Inspector/Station House Officer, Police Station Dornapal and exhibited 22 documents from Exhibit P-1 to Exhibit P-21A, whereas, the defence neither examined any witness nor exhibited any document in support of his case. 1.6 Upon appreciating the oral and documentary evidence available on record, the learned Special Judge, by the impugned judgment dated 27-1-2003 in Special Case No. 39/2002, convicted the appellant for the aforesaid offence finding that the prosecution has proved the offence under Section 20(b)(ii)(B) of the NDPS Act beyond reasonable doubt and sentenced him to undergo rigorous imprisonment for four years and six months and to pay fine of Rs. 20,000/-, in default of payment of fine amount, to undergo additional rigorous imprisonment for one year. 1.7 Feeling dissatisfied with the judgment of conviction and order of sentence, the appellant has preferred the instant appeal. 2. Mr. Subhash Yadav, learned counsel appearing on behalf of the appellant raised two principal contentions:-- (i) That the mandatory provision contained in Section 42 of the NDPS Act have not been complied with as the information received about the commission of the said offence was not reduced in writing and same was not sent to the superior officer, and (ii) That the mandatory provision of Section 50 of the NDPS Act have not been complied with, as the accused/appellant was not informed of their right as to whether he wanted to be searched before the Executive Magistrate or Gazetted Officer. Therefore, conviction recorded and sentence awarded deserves to be set aside. 3. Opposing the submission advanced by learned counsel for the appellant/accused, on the other hand, Mr. Prasun Bhaduri, learned Govt. Therefore, conviction recorded and sentence awarded deserves to be set aside. 3. Opposing the submission advanced by learned counsel for the appellant/accused, on the other hand, Mr. Prasun Bhaduri, learned Govt. Advocate appearing on behalf of the State/respondent would submit that the information received by the Police Officer was for Crime No. 28/2002 for the offence under Sections 279 and 337 of the Indian Penal Code and there was no such information received by the Police Officer about the commission of offence under NDPS Act and, therefore, the compliance of Section 42 of the NDPS Act was not necessary in the facts and circumstances of the case. He would further submit that section 50 of the NDPS Act has fully and faithfully been complied with. He would lastly submit that section 50 of the NDPS Act would not be applicable, as this is a case 'chance recovery' of the Ganja in question. 4. Upon hearing the learned counsel for the parties and on perusal of the record, following questions would arise for consideration:-- (i) Whether Section 42 of the NDPS Act would be applicable in the accidental or chance recovery of the Narcotice drugs? (ii) Whether Section 50 of the NDPS Act has been fully complied with while making search of the appellant? Answer to question No. (i) 5. The prosecution case is that, on information received with respect to crime No. 28/2002 for the offence under Sections 279 and 337 of the Indian Penal Code, Mohan Lal Pandey (PW-4), Assistant Sub-Inspector, after making endorsement of his departure in Rojnamcha Sanha No. 634 (Exhibit P-10C), went to village Manikonta along with his police party for investigation of the said offence. While, police party was coming back from village Manikonta to Police Station Dornapal, near cremation ground at village Penta, they saw that appellant-Chitaranjan Mandal along with one suitcase was standing on the road, and when they went near the appellant, the accused/appellant, having seen the police party, got scared and tried to move away from the spot, by which, Mohan Lal Pandey (PW-4) entertained a suspicion followed by examination of the suit-case, which he was found in possession, and upon inspection of the suitcase, smelled narcotic drug, and upon notice of search Exhibit P-2, in presence of two witnesses, namely, Suresh Singh Chouhan (PW-2) and Suryapal Singh (PW-3), the seized article, i.e. Ganja was found in possession of the appellant, thereafter, steps were taken to weigh the Ganja, and it was found that its weight was 9 kg. Thereafter, two packets of 25-25 grams were taken out as sample, which was sent to the chemical examiner vide Exhibit P-18 and the same was found to be narcotic drug i.e. Ganja (Cannabis) vide Exhibit P-20. The aforesaid facts are clearly established from the Rojnamcha Sanha No. 634 Exhibit P-10C recorded on 20-9-2002, by which, ASI Mohan Lal Pandey (PW-4) handed over charge to Head Constable 270 followed by First Information Report Exhibit P-13 and an information was given to the Additional Superintendent of Police, Sukma, District Dantewada under Section 57 of the NDPS Act vide Exhibit P-15. The aforesaid fact is clearly established that the Police Officer had no information regarding commission of the offence as contemplated under Chapter IV of NDPS Act. 6. The expression 'chance recovery' has not been defined anywhere. Very recently, their Lordships of the Supreme Court in State of H.P. v. Sunil Kumar 2014 (3) SCALE 407 : (2014) 4 SCC 780 : (2014 Cri LJ 3532), considering two earlier decisions of the Supreme Court in Mohinder Kumar v. State, Panaji, Goa (1998) 8 SCC 655 , and Sorabkhan Gandhkhan Pathan v. State of Gujarat (2004) 13 SCC 608 , has clearly held that a chance, accidental or unexpected recovery will be a 'chance recovery' and stated as under:-- "14. 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. 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. In Mohinder Kumar v. State, Panaji, Goa (1998) 8 SCC 655 , 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 Gujarat (2004) 13 SCC 608 , the police officer, while searching for illicit liquor, accidentally found some charas. This was treated as a 'chance recovery'." 7. The Supreme Court in the case of State of Punjab v. Balbir Singh (1994) 3 SCC 299 : (1994 Cri LJ 3702) has succinctly explained the scope of Sections 41, 42, 50 & 52 of the NDPS Act as to what extent these provisions are mandatory and set out the conclusion in para 25 of said report, which reads as follows:-- "25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (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 Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS 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 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 stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. When he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. When he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorization to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr.P.C. fails to strictly comply with the provisions of Sections 100 and 165 Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorized officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely Sections 100 and 165, Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information the empowered officer or authorized officer while acting under Sections 41(2) or42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapeses like delay etc. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapeses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case". 8. From the foregoing analysis, it is very much clear that if the empowered officer makes a search or arrest pursuant to the information of commission of an offence as contemplated under the NDPS Act, it is required to be recorded in writing and the said information is required to be sent to a superior officer under Section 42 of the NDPS Act. 9. The aforesaid decision has been followed and reiterated by the Supreme Court in State of Punjab v. Baldev Singh (1999) 6 SCC 172 : (1999 Cri LJ 3672) as under:-- "2. The above questions came up for consideration before a two-Judge Bench of this Court in State of Punjab v. Balbir Singh (1994 Cri LJ 3702), and it answered them as under: "On prior information the empowered officer or authorized officer while acting under Section 41(2) or 42should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial". 10. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial". 10. Applying the law laid down by their Lordships of the Supreme Court in Balbir Singh case (1994 Cri LJ 3702) (supra) and Baldev Singh case (1999 Cri LJ 3672) (supra), to the facts of the case in hand, it is clear that Mohanlal Pandey (PW-4), Assistant Sub-Inspector along with other officers had gone for investigation of Crime No. 28/2002, and while coming back, they accidentally or unexpectedly came across drugs being carried by the present appellant. This can only be described as a "chance recovery" as they were neither looking for drugs nor expecting to find drugs being carried by the present appellant. Thus, the provisions of Section 42 of the NDPS Act would not be attracted in case of "Chance Recovery". 11. Apart from this, there is one more reason for rejecting the submission on behalf of the appellant as no foundation has been laid by the defence about non-compliance of Section 42 of the NDPS Act. Though, the burden was on the prosecution to show the compliance of Section 42 of the NDPS Act yet since no foundation has been laid by the defence by cross-examining the Police Officer Mohan Lal Pandey (PW-4) or other witness in this behalf, therefore, it is not open to argue that there was non-compliance of Section 42 of the NDPS Act. Thus, this question is answered that in case of accidental or chance recovery, the statutory requirement of writing down and conveying information to superior officer prior to entry, search and seizure, as contained in Section 42 of the NDPS Act, would not be attracted. This question is answered accordingly. Answer to question No. (ii) 12. In the instant case, Mohan Lal Pandey, Assistant Sub-Inspector (PW-4) served notice Exhibit P-2 to get search of the appellant conducted either before a Gazetted Officer or before a Magistrate or before him. The relevant portion of the notice Exhibit P-2 (Sahamati Panchnama), is extracted as follows:-- (Editor: The text of the vernacular matter has not been reproduced.) 13. In the instant case, Mohan Lal Pandey, Assistant Sub-Inspector (PW-4) served notice Exhibit P-2 to get search of the appellant conducted either before a Gazetted Officer or before a Magistrate or before him. The relevant portion of the notice Exhibit P-2 (Sahamati Panchnama), is extracted as follows:-- (Editor: The text of the vernacular matter has not been reproduced.) 13. The Constitution Bench of the Supreme Court in case of Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609 : (2011 Cri LJ 680) considered the question whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate and formulated the following question as under:-- "Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section". 14. While answering the divergent view, it has been held by their Lordships of the Supreme Court that the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is mandatory to inform the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate and pleased to hold as under:-- "22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1)of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re: Presidential Poll [ (1974) 2 SCC 33 ] : ( AIR 1974 SC 1682 ), it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole". We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (2000 Cri LJ 3485) (supra) and Prabha Shankar Dubey ( AIR 2004 SC 486 ) (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest Gazetted Officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. 15. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. 15. Very recently, the aforesaid principle laid down by the Constitution Bench has been followed by the Supreme Court in Ashok Kumar Sharma v. State of Rajasthan (2013) 2 SCC 67 as under:-- "7. We are in this case concerned only with the question whether PW1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under Section 50 of the Narcotic Drugs and Psychotropic Substances Act. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to five Judge Bench. This Court in Vijaysingh Chandubha Jadeja (supra) answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, to be searched before a Gazetted Officer or a Magistrate. This Court also held that it is mandatory on the part of the authorized officer to make the accused aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. The suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer concerned, an obligation is cast on him under Section 50 of the Narcotic Drugs and Psychotropic Substances Act to apprise the person of his right to be searched before a Gazetted Officer or Magistrate. 16. After having examined the statutory provisions and principles laid down by their Lordships of the Supreme Court, falling back to the facts of the instant case, it would appear that the appellant was not merely asked to give his consent for search by the police party, but he was apprised of his legal right provided under Section 50 of the NDPS Act which is clear from the notice Exhibit P-2 given to the appellant and he opted to be searched by the police officer. Thus, mandatory provision of Section 50 of the NDPS Act was fully and religiously complied with by the prosecution. There was no infraction or violation of Section 50 of the NDPS Act in making search of the appellant. 17. Thus, mandatory provision of Section 50 of the NDPS Act was fully and religiously complied with by the prosecution. There was no infraction or violation of Section 50 of the NDPS Act in making search of the appellant. 17. This apart, let the matter be considered from other angle, the recovery of contraband (Ganja) in the case in hand was 'chance recovery' of the narcotic drug during the search of the suitcase of the appellant kept in his possession, and therefore, the provision of Section 50 of the NDPS Act would not be attracted as held by their Lordships of the Supreme Court in Sunil Kumar case (2014 Cri LJ 3532) (supra). Paragraph--18 of the report states as under:-- "18. As far as the applicability of Section 50 of the Act in a chance recovery is concerned, the issue is no longer res integra in view of the decision of the Constitution Bench in Baldev Singh (supra)." 18. There is an additional reason for holding that Section 50 of the NDPS Act is not attracted in the case in hand. It is well settled that Section 50of the NDPS Act is applicable only where search of a person is involved, and is not applicable, where, no search of a person is to be conducted. Extremely recently, their Lordships of the Supreme Court in Krishna Kumar v. State of Haryana 2014 AIR SCW 3667 has held as under:-- "12. It is clear from the reading of the aforesaid provision that it is applicable only where search of a person is involved. It is not made applicable in those cases where no search of a person is to be conducted. In the instant case the appellant was carrying a bag which was to be searched and on his request Chet Ram was summoned in whose presence search was conducted which pertained to a bag. In Ajmer Singh v. State of Haryana (2010) 3 SCC 746 : (AIR 2010 SC (Supp) 582 : (2010 Cri LJ 1899) : 2010 AIR SCW 1494) this aspect is specifically considered and dealt with. Following earlier Constitution Bench judgment, the Court held that when search and recovery from a bag, brief case container etc. is to be made, provisions of Section 50 of the Act are not attracted". 19. In the present case, the appellant/accused was carrying a suitcase, which was searched in presence of the appellant. Following earlier Constitution Bench judgment, the Court held that when search and recovery from a bag, brief case container etc. is to be made, provisions of Section 50 of the Act are not attracted". 19. In the present case, the appellant/accused was carrying a suitcase, which was searched in presence of the appellant. Thus, following the principles laid down in the above referred to decision, the provision contained in Section 50 of the NDPS Act would not be attracted as search of a bag is different from search of a person or accused. 20. Thus, this question is answered accordingly by holding that accidental or chance recovery of a narcotic drug during or where no search of person is to be conducted, provisions contained in Section 50 of the NDPS Act would not be applicable. Keeping in view the ratio of law laid down by their Lordships of the Supreme Court in the aforesaid cases and the finding recorded by the Special Judge in the instant case, I find no reason to interfere with the judgment under appeal. In the result, the criminal appeal being sans substratum is dismissed. The appellant is reported to be on bail. His bail bonds are cancelled. He is directed to surrender before the Special Judge to serve out remaining jail sentence. Appeal dismissed.