Holding

Concealment of undeclared opium, in violation of Rule 13's daily declaration requirement, constitutes contraband under Section 8 read with Section 18 of the NDPS Act, and the conviction stands.

Summary

The appellants, brothers Daulat Ram and Mangilal, cultivated opium under a licence held by their mother and failed to declare the entire yield to the Lambardar as required by Rule 13 of the NDPS Rules. During a raid, concealed opium was recovered from pits they had dug, and both accused confessed to withholding the opium for unauthorized sale. They were convicted under Section 8 read with Section 18 of the NDPS Act, a conviction upheld by the High Court. On appeal, the Supreme Court examined whether the failure to make daily declarations and the concealment of opium amounted to contraband despite the absence of independent witnesses. The Court held that Rule 13 imposes a daily declaration duty, the undisclosed opium was not accounted for, and the confessions and recovery substantiated the prosecution, rendering the conviction valid. Consequently, the appeal was dismissed and the original sentences affirmed.

Issues considered

Whether concealment of opium not declared under Rule 13 constitutes contraband punishable under Section 8 read with Section 18 of the NDPS Act.
Whether the lack of independent witness testimony defeats the prosecution's case.
Whether the requirement of final quantification before accounting relieves the accused of liability under the NDPS Act.

Legislation cited

Subjects

opium cultivationlicenceNDPS ActcontrabandRule 13confessionconvictionappeal

Judgment

[2011) 1 S.C.R. 1092

A DAULAT RAM & ANR.
v.
CBN MANDSAUR, M.P.
(Criminal Appeal No. 259 of 2006)

JANUARY 27, 2011
B
[HARJIT SINGH BEDI AND CHANDRAMAULI KR.
PRASAD, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985
C - s. 8 read with s. 18 - Appellants cultivating opium under a
licence - Recovery of undeclared opium from the field of the
appellants - Confession by the appellants that they hacf
withheld the opium to sell it in the market in an unauthorized
manner - Conviction u/s. 8 read with s. 18 by courts below -
o On appeal, held: Justified - Rule 13 makes it obligatory for ..,.. ..
an opium producer to make a declaration to the lambardar
as to the quantity of opium produced everyday - No evidence
to show that the opium which had been recovered had been
declared or accounted for before the Lambardar - However;
E the fact that opium was buried three feet underground and far
away from the residence of the appellants clearly shows that
the intention was to stash away the opium for sale in an
unauthorized way - Even though no independent witness
supported the prosecution story, the evidence of the official
F witness is supported by the recovery of the opium and also
by the confessions made by the appellants that they had
withheld the opium to sell it in the market - Narcotic Drugs ·
and Psychotropic Substances Rule, 1985 - r. 13

Bheru /al v. State of Rajasthan RLW 2003 (2) Raj 1056
G - referred to.

Case Law Reference:
RLW 2003 (2) Raj 1056 Referred to Para 5

H 1092
.,, DAULAT RAM & ANR. v. CBN MANDSAUR, M.P. 1093

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal A
·~-> No. 259 of 2006.

From the Judgment & Order dated 20.09.2004 of the High
Court of Madhya Pradesh ln9Q.r~J~~nch, Indore in Criminal
Awe~~·No: 259 of 2001. 8
Ashok Kumar Sharma, Avinash Kumar Jain for the
Appellants.
'"°"'J"
J.S. Attr(Sadhana Sandhu, Rashmi, Sushma Suri for the
Respondent. c
The following order of the Court was delivered

ORDER

1. This appeal arises out of the following facts:' D
·--·~-
1.1 The appellants herein, both brothers, Daulat Ram and
. Mangilal, sons of Hurdabai, were living with their mother at
village Dorana. Hurdabai had been issued a licence to grow
: opium in her land and the appellants were looking after the
E
cultivation on her behalf. On the 5th April, 1997, reports were
received in the Narcotics Office that Hurdabai was not
depositing the entire yield of opium with the Lambardar. The
ASI CBN, Balaram PW 2, and the District Opium officer,
Satyaveer Singh Choudhary PW 6, along with other members
of a raiding party reached the village Dorana at 2:00p.m., and F
on inquiry it was ascertained that the allegations appeared to
be correct. The appellants were, accordingly, apprehended and
interrogated by the ASI and during interrogation Daulat Ram
admitted that some of the undeclared opium had been hidden
in his field. Thereafter Mangilal appellant was also interrogated F
"" and he made a similar statement. The raiding party then visited
the field of Daulat Ram and after digging the pit at the place
pointed out by him, took out a polythene bag which when
weighed was found to contain 3kg of opium. Similarly, Mangilal
took the officers to the place which he had identified and H
1094 ·SUPREME COURT REPORTS [2011) 1 S.C.R. ...
A another 3 kg of opium was recovered from another pit. The
appellants also gave their confessions Exhibits P 16 and P17
respectively, stating therein that they had withheld the opium to
sell it in the market in an unauthorised manner.

1.2 On the completion of the investigation, the appellants
8
were charged under Section 8 read with Section 18 of the
Narcotic Drugs and.Psychotropic Substances Act, (hereinafter
referred to as 'the Act'). The trial court relying on the evidence "I'-"
of P.W. 1 Bhanwarilal Patwari who had identified the fields as
C. belonging to Hurdabai and in particular the evidence of P.W.
2, P.W. 5 and P.W. 6 and also on the confessions made by
the accused held that the case against them had been proved
beyond doubt. The appellants were each sentenced to 10 years
rigorous imprisonment and a fine of Rs.1 lakh with a default
sentence. An appeal taken to the High Court too was
D dismissed. -,.- .
2. Before us, today, Mr. Ashok Kumar Sharma the learned
Amicus Curiae for the appellants, has raised one basic
argument. He has submitted that as per the Act and Rule 13
E of the Narcotics Drugs & Psychotropic Substances Rule, 1985,
framed thereunder the opium which was produced had to be
reported to the Lambardar and it was only after the final
notification had been issued and the production had been
quantified that the final accounting had to be made and not at
F any stage prior thereto. It has also been pointed out that the
two independent witnesses having not supported the
prosecution there was no independent evidence against the
appellants .

., 3. Mr. J.S. Attri, the learned senior counsel for the.
'~ G respondents has, however, supported the judgment of the courts ~
below.

4. We have considered the arguments advanced by the
learned counsel. It is true, as contended by M_r. Sharma, that
H an over all accounting of the opium has to be made after the
. ' '
DAULAT RAM & ANR. v. CBN MANDSAUR, M.P. 1095

notification has been issued identifying the percentage of opium A
~ that should be in the hands of a producer. However, there is
an obligation under Rule 13 of the Rules, 1985 to make a
declaration to the Lambardar as to the quantity of opium
produced everyday. There is no evidence or suggestion to show
that the opium which had been recovered had been declared B
or accounted for before the Lambardar. On the contrary the fact
that it had been buried three feet underground and far away
'! from the residence of the appellants clearly shows that the
intention was to stash away the opium for sale in an authorised
way. c
5. Mr. Sharma has, however, cited Bheru la/ v. State of
Rajasthan RLW 2003 (2) Raj 1056 to contend that till the final
quantificatron had been made the opium could not be said to
be contraband. We find that some of the conclusions drawn in
the cited judgment are too far reaching and basically ignore Rule D
·~
13 which requires a day to day accountability before the
Lambardar. On facts, it is also apparent that the opium in Bheru
Lal's case had been recovered from the resid&ntial house of
the accused. In th~ case before us, as per the prosecution story,
the opium had been recovered from 3 feet underground .. E

6. It is equally true that no independent witness has
suppor;ted the prosecution story. The evidence of the official
witnesses is, however, supported by the recovery of the opium
and also by the confessions made by the appellants.
F/
7. The appeai is, accordingly, dismissed.

N.J. Appeal dismissed.

-tf