RAM KUMARversusCENTRAL BUREAU OF NARCOTICS

                         [2008] 7 S.C.R. 704


A                          RAM KUMAR
                                  V.
              CENTRAL BUREAU OF NARCOTICS
               (Criminal Appeal No. 800 of 2008)

                           MAY 5, 2008
B
       [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)

        Narcotics Drugs and Psychotropic Substances Act, 1985:
        ss. 8, 21, 42, 50 & 67 - PWs 4 and 2, Superintendent
C and Inspector in the Narcotics Department, while making
  casual inspection of a bus, recovered 'brown sugar' from
  exclusive possession of two passengers including Appellant
  - Conviction by both Trial Court and High Court - Challenge
  to - On ground that there was violation of ss. 42 and 50 and
D further that there was discrepancy in evidence of PWs 2 and 4
  about the manner of seizure of the alleged contraband article
  - Held: The present case is a case of chance recovery of
  contraband article in a public place effected during routine
  checking - s. 42 has no application herein - A/so, Appellant
E when examined under s. 67 admitted conscious possession
  of the contraband article - There was no retraction to this
  voluntary confession - Alleged discrepancies in testimony of
  PWs 2 and 4 were minor which did not affect credibility of
  evidence of these witnesses - The samples were duly sealed
F and sent for examination and on receipt of the report it was
  concluded that the articles were 'brown sugar' - Conviction of
  Appellant sustained.
       According to the prosecution, PWs 4 and 2,
  respectively posted as Superintendent and Inspector in
G the Narcotics Department, while making casual inspection
  of a bus, recovered 'brown sugar' from the exclusive
  possession of two passengers including Appellant.
        The    Special    Judge        (Narcotics   Drugs   and

H                               704
 RAM KUMAR v. CENTRAL BUREAU OF NARCOTICS                705


Psychotropic Substances Act, 1985) convicted both the           A
accused under ss.8 and 21 of the Narcotics Drugs and
Psychotropic Substances Act, 1985 and sentenced them
each to RI for 10 years. In appeal, High Court confirmed
the conviction and sentence.
     The conviction of Appellant is challenged before this      8
Court on the ground that there was violation of the
provisions of ss. 42 and 50 of the Act and further that there
was discrepancy in the evidence of PWs 2 and 4 about
the manner of seizure of the alleged contraband articles.
                                                                c
     Dismissing the appeal, the Court
     HELD: 1. The present case is a case of chance
recovery and s.42 of the Narcotics Drugs and
Psychotropic Substances Act, 1985 has no application.
The evidence of witnesses clearly established that it was D
a case of chance recovery in a public place effected during
routine checking. The contraband articles were recovered
from the exclusive possession of Appellant and the co-
accused. [Para 6] [707-E; 708-A, B]
       2. Apart from that, the Appellant was examined under E
s.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, there are minor variations which do not in F
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. G
It is the evidence of 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. The samples which were duly sealed were sent to
factory for examination and on receipt of the report it was H
    706       SUPREME COURT REPORTS                  [2008] 7 S.C.R.

                                                                       .;..       '
A concluded that the articles were brown sugar. [Para 7)
    [708-B, C, D, E]
        CRIMINAL APPELLATE JURISDICTION : Criminal
    Appeal No. 800 of 2008.
B        From the Order dated 11.3.2005 of the High Court of
    Madhya Pradesh, Indore Bench at Indore in Criminal Appeal           ,
    No. 1159/1999

          Dr. Sushi! Balwada (A.C.) for the Appellant.
C         Sanjeev Bhardwaj Kiran Bhardwaj and B.V. Balaram Das
    for the Respondent.
          The Judgment of the Court was delivered by
          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 -
                                                                              ...
                                                                              f




  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
              Inspector of Narcotics Department at the relevant point of time F
              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
    708       SUPREME COURT REPORTS                   [2008] 7 S.C.R.

                                                                          ;..

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.
F
    8.8.8.                                       Appeal dismissed
                                                                         ....