Daulatram & Anr vs Cbn Mandsaur, M.P

Crl.A. 259 of 2006 REPORTABLE

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 259 OF 2006

DAULAT RAM & ANR. ...... APPELLANTS

VERSUS

CBN MANDSAUR, M.P. ...... RESPONDENT

O R D E R

1. This appeal arises out of the following facts:

1.1 The appellants herein, both brothers, Daulat

Ram and Mangilal, sons of Hurdabai, were living with

their mother at village Dorana. Hurdabai had been

issued a licence to grow opium in her land and the

appellants were looking after the cultivation on her

behalf. On the 5th April, 1997, reports were received

in the Narcotics Office that Hurdabai was not

depositing the entire yield of opium with the

Lambardar. The ASI CBN, Balaram PW 2, and the District

Opium officer, Satyaveer Singh Choudhary PW 6, along

with other members of a raiding party reached the

village Dorana at 2:00p.m., and on inquiry it was

ascertained that the allegations appeared to be

correct. The appellants were, accordingly, apprehended

and interrogated by the ASI and during interrogation

Crl.A. 259 of 2006 REPORTABLE

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Daulat Ram admitted that some of the undeclared opium

had been hidden in his field. Thereafter Mangilal

appellant was also interrogated and he made a similar

statement. The raiding party then visited the field of

Daulat Ram and after digging the pit at the place

pointed out by him, took out a polythene bag which

when weighed was found to contain 3kg of opium.

Similarly, Mangilal took the officers to the place

which he had identified and another 3 kg of opium was

recovered from another pit. The appellants also gave

their confessions Exhibits P 16 and P17 respectively,

stating therein that they had withheld the opium to

sell it in the market in an unauthorised manner.

1.2 On the completion of the investigation, the

appellants were charged under Section 8 read with

Section 18 of the Narcotic Drugs and Psychotropic

Substances Act, (hereinafter referred to as 'the Act').

The trial court relying on the evidence of P.W. 1

Bhanwarilal Patwari who had identified the fields as

belonging to Hurdabai and in particular the evidence of

P.W. 2, P.W. 5 and P.W. 6 and also on the confessions

made by the accused held that the case against them had

been proved beyond doubt. The appellants were each

sentenced to 10 years rigorous imprisonment and a fine

of Rs.1 lakh with a default sentence. An appeal taken

Crl.A. 259 of 2006 REPORTABLE

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to the High Court too was dismissed.

2. Before us, today, Mr. Ashok Kumar Sharma the

learned Amicus Curiae for the appellants, has raised

one basic argument. He has submitted that as per the

Act and Rule 13 of the Narcotics Drugs & Psychotropic

Substances Rule, 1985, framed thereunder the opium

which was produced had to be reported to the Lambardar

and it was only after the final notification had been

issued and the production had been quantified that the

final accounting had to be made and not at any stage

prior thereto. It has also been pointed out that the

two independent witnesses having not supported the

prosecution there was no independent evidence against

the appellants.

3. Mr. J.S. Attri, the learned senior counsel for

the respondents has, however, supported the judgment of

the courts below.

4. We have considered the arguments advanced by the

learned counsel. It is true, as contended by Mr.

Sharma, that an over all accounting of the opium has to

be made after the notification has been issued

identifying the percentage of opium that should be in

the hands of a producer. However, there is an

obligation under Rule 13 of the Rules, 1985 to make a

declaration to the Lambardar as to the quantity of

Crl.A. 259 of 2006 REPORTABLE

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opium produced everyday. There is no evidence or

suggestion to show that the opium which had been

recovered had been declared or accounted for before the

Lambardar. On the contrary the fact that it had been

buried three feet underground and far away from the

residence of the appellants clearly shows that the

intention was to stash away the opium for sale in an

authorised way.

5. Mr. Sharma has, however, cited Bheru lal v.

State of Rajasthan RLW 2003 (2) Raj 1056 to contend

that till the final quantification had been made the

opium could not be said to be contraband. We find that

some of the conclusions drawn in the cited judgment are

too far reaching and basically ignore Rule 13 which

requires a day to day accountability before the

Lambardar. On facts, it is also apparent that the

opium in Bheru Lal's case had been recovered from the

residential house of the accused. In the case before

us, as per the prosecution story, the opium had been

recovered from 3 feet underground.

6. It is equally true that no independent witness

has supported the prosecution story. The evidence of

the official witnesses is, however, supported by the

recovery of the opium and also by the confessions made

by the appellants.

Crl.A. 259 of 2006 REPORTABLE

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7. The appeal is, accordingly, dismissed.

...... ..................J [HARJIT SINGH BEDI]

........................J [CHANDRAMAULI KR. PRASAD] NEW DELHI JANUARY 27, 2011.