Ram Kumar Vs. Central Bureau of Narcotics [2008] INSC 799 (5 May 2008
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 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- 5 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.
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