REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.               of 2008 (Arising out of SLP (Crl.) No. 1434 of 2007)

Ram Kumar        ...Appellant

Versus

Central Bureau of Narcotics           ...Respondent

J U D G M E  N T

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

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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

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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

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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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