Ram Kumar vs Central Bureau Of Narcotics

Ram Kumar ...Appellant

Versus

Central Bureau of Narcotics ...Respondent

JUDGME NT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned

Single Judge of the Madhya Pradesh High Court, Indore Bench upholding the conviction recorded by a learned Special

Judge (NDPS Act), Indore in Special Case No.10/98 convicting

the appellant alongwith another accused Aziz Khan for

offence punishable under Sections 8 and 21 of the Narcotics

Drugs and Psychotropic Substances Act, 1985 (in short `Act')

and sentencing each to RI for 10 years and to pay a fine of

Rs.1,00,000/- with default stipulation.

3. Background facts in a nutshell are as under:

On 5.19.1997 Superintendent of the Narcotics

Department, Shri A.B. Acharya (PW-4) and Inspector Devilal

Prajapati (PW-2) proceeded to Mhow Naka. At 8.00 p.m. they

checked a bus bearing registration No.MP-09/S-1841, which

was going from Indore to Bombay. They informed the driver

and conductor of the bus that in regard to the checking of

contraband article, they want to check the bus. On inspection

they found two persons sitting on seat Nos. 1 and 2. According

to the case of the prosecution, the appellant and the co-

accused on seeing them became perplexed. After giving notice

2 under Section 50 of the Act they were searched. It is the case

of the prosecution that 800 gms. of brown sugar was seized

from co-accused Aziz which was kept inside the shoes and

710 gms. of brown sugar was seized from the appellant. After

following the requisite formalities, four samples were taken

out and they were sent to Chemical Examiner. On receiving

the report of the Chemical Examiner, presence of brown sugar

was confirmed and a charge sheet was submitted in the

Special Court.

The Special Judge, after bare perusal of the charge sheet

framed charges for offences punishable under Sections 8/21

of the Act. The accused persons pleaded innocence. The Trial

Court believed the prosecution version and recorded

conviction and imposed sentences. In appeal, High Court

confirmed the conviction and sentence.

4. The basic stand of the appellant in the appeal was that

there was violation of the provisions of Sections 42 and 50 of

the Act. It is submitted that there was also discrepancy in the

3 evidence of the two witnesses about the manner of seizure of

the alleged contraband articles.

5. Learned counsel for the respondent on the other hand

supported the judgment of the trial Court and the High Court.

6. It is to be noted that this is a case of a chance recovery

and Section 42 has no application. It is the case of the

prosecution as stated by Shri A.B. Acharya (PW-4) and Devilal

Prajapati (PW-2) who were posted as Superintendent and

Inspector of Narcotics Department at the relevant point of

time that on 5.9.1997 they wanted to make casual inspection.

The driver and the conductor were duly informed. On

inspection two persons sitting on the seats Nos. 1 and 2 were

found suspicious and on being asked they disclosed their

names as Aziz Khan and Ram Kumar respectively. Thereafter,

they were given both options to be searched in terms of

Section 50 of the Act and they consented for their search to be

done before P.W.4. Panchanama was prepared. During search

710 gms. of brown sugar was recovered from the appellant

4 which was kept inside the shoes and 800 gms. of brown sugar

was recovered from Aziz Khan. On verification and analysis it

was found that the seized substance was brown sugar.

Statement of both the accused was recorded. The evidence of

witnesses clearly established that it was a case of chance

recovery in a public place effected during routine checking.

The contraband articles were recovered from the exclusive

possession of the appellant and the co-accused.

7. Apart from that, the appellant was examined under

Section 67 of the Act in which he admitted the conscious

possession of the contraband articles. There was no retraction

to this voluntary confession. So far as the alleged

discrepancies in the testimony of PWs 2 and 4 are concerned,

we find that there are minor variations which do not in any

way affect the credibility of evidence of these witnesses. The

evidence clearly shows that prosecution has established the

separation of samples, deposit of samples in the Malkhana,

receipt of samples at the research laboratory and the

examination by the experts. It is the evidence of Prajapati (PW-

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2) that during search of accused persons brown sugar was

found inside the shoes. On being examined by UNO Kit it was

identified as brown sugar. The samples which were duly

sealed were sent to Neemuch factory for examination and on

receipt of the report it was concluded that the articles were

brown sugar.

8. Above being the position, there is no merit in this appeal

which is accordingly dismissed.

.................................J. (Dr. ARIJIT PASAYAT)

................................J. (P. SATHASIVAM)

New Delhi, May 5, 2008

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