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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.101 OF 2005

ABBAS KHAN                                       Appellant (s)

                     VERSUS

CENTRAL BUREAU OF NARCOTICS                      Respondent(s)

WITH CRL.A.NO.651/2006

O R D E R

These appellants were tried along with two other accused by the

Special  Judge,  N.D.P.S.,  Mandsore(M.P.)  for the offences punishable under

Section  18  read  with  Section  8  of  the  Narcotic  Drugs  and  Psychotropic

Substances Act, 1985 (for short 'the Act').  The prosecution case was that the

Superintendent-M.C.Vijay  of  the  Central  Bureau  of  Narcotics,  along  with

other officers, were on patrol duty on 1.5.1997 and at about 9.45 p.m. they

intercepted the truck-DIG 4753.  Two persons were in the truck and when

they  stopped  the  truck  and  thereafter  started  running  away  and  the

Inspector A.K.Tulsidasan apprehended them.  The truck was searched in the

presence of the witnesses and it was found that 2.10 KGs of Opium  and  8

KGs of  Dodachura were  also found in  the truck.   The officers  prepared a

mazhar and seized the articles and a case was registered against two accused

viz. Shri Hardeo Singh and Daljeet Singh.  On questioning these two accused,

officers came to  know  that  Opium was sold by the present appellants

Abbas

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Khan and Azam Khan.  P.W.6 issued a notice under Section 67 of the Act to

the appellants and their statements were taken.    In their statements they

admitted having sold Opium to other accused who were also travelling in the

truck.

After the trial the Special Judge found all the four guilty under

Section 18 of the Act and they were sentenced to undergo 10 years rigorous

imprisonment  with  a  fine  of  Rs.1  lac  each.   In  the  appeal  filed  by  the

accused,  the High Court  confirmed the conviction.   The first  and second

accused Hardeo Singh and Daljeet  Singh did not prefer  any appeal  while

accused nos.3 and 4 have filed the present appeals before this Court.

Heard both sides.

The prosecution relied on the admission made under Section 67

of  the  Act  by  these  two  accused  before  P.W.6  but  we  notice  that  the

contraband articles allegedly seized from the first and second accused were

not shown to the present two appellants and there is no evidence to show

that  the  very  same articles  were  seized by the  officers  in  the  course  of

investigation.  There  is  practically  no  evidence  to  show as  to  how  much

quantity of articles were allegedly sold by these appellants.  However, we do

not think that the statements made by these accused are inadmissible in

evidence as they were made under Section 67 of the Act.  At the same time

the evidence adduced would only prove that they had dealt  with narcotic

drugs   and  to   that  extent  the  admission is valid. As the

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quantity itself is not proved,  one could only say that  it is not possible to

assume that they were dealing with any commercial quantity of contraband

articles, which offence by itself is of a very serious nature.  The prosecution

should have produced better evidence to sustain such conviction.  

Under the above circumstances, we hold that  the accused could

only be convicted under Section 18(b)  of the Act.    We are told that  the

appellants have already undergone a fairly long period of sentence.  There is

no evidence that they were dealing with any commercial quantity of these

contraband articles.  Therefore, we confirm the conviction. In our opinion,

the sentence already undergone by the appellants is sufficient to meet the

ends of justice.   We direct the appellants to be released forthwith, if  not

required in any other case.  Learned counsel for the appellants submits that

the fine imposed is also not paid so far.   The fine so imposed upon the

appellants is also waived off.   

The appeals are disposed of accordingly.    

...............CJI. (K.G. BALAKRISHNAN)

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

.................J.     (J.M. PANCHAL)

NEW DELHI; 14TH JANUARY, 2009.