Ram Kumar v. Central Bureau of Narcotics
DR. ARIJIT PASAYAT, J. 1. Leave granted.
D 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
E 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:
F 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
G 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 under Section 50
H of the Act they were searched. It is the case of the prosecution
...
RAM KUMAR v. CENTRAL BUREAU OF NARCOTICS 707
[DR. ARIJIT PASAYAT, J.]
, "' that 800 gms. of brown sugar was seized from co-accused Aziz A
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 8
, 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 c
and imposed sentences. In appeal, High Court confirmec. 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 D the Act. It is submitted that there was also discrepancy in the
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. E
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.8. Acharya (PW-4) and Devilal
Prajapati (PW-2) who were posted as Superintendent and
F 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 G
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 which was kept inside
the shoes and 800 gms. of brown sugar was recovered from H
;..
A 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
8 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
c 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
D 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-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.
E 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.
8.8.8. Appeal dismissed
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