Kanhaiyalal vs Union Of India (Uoi)

4. Aggrieved by his conviction and sentence, Phool Chand preferred Criminal Appeal No. 47 of 2002 before the Indore Bench of the Madhya Pradesh High Court. On the other hand, the Union of India also preferred Criminal Appeal No. 108 of 2003 against the acquittal of Ram Prasad and the appellant herein.

5. The High Court heard both the appeals together and ultimately dismissed the appeal preferred by Phool Chand and relying on the statement made by Ram Prasad and the appellant herein under Section 67 of the NDPS Act, found them also guilty of the charges framed against them and allowed the appeal filed by the Union of India. Ram Prasad and Kanhaiyalal (the appellant herein) were also sentenced to 10 years R.I. each and fine of Rs. 1 lakh each, and in default, to further undergo a jail sentence of 6 months R.I.

8. As will appear from the records, the case of the prosecution was that on 22.2.1997 an information had been received by Shri Rajesh Nagpal, Assistant Narcotics Commissioner of the Central Bureau of Narcotics, Neemuch, that accused Phoolchand and Ram Prasad were involved in illegal dealing in opium and they had entered into an agreement to buy 25 kgs of opium from the appellant and the delivery of the said contraband was to be made at the site of the well of accused Ram Prasad situated in Haspur. On receipt of the said information, Shri Nagpal went to his office and reported the same. Subsequently, the same was produced before the Deputy Commissioner, Shri Prem Raj. On the basis of the said information a preventive party was constituted which proceeded to the identified site. The raiding party purportedly reached village Hadipiplya Police Station, Manasa, by a Government vehicle at about 3.00 p.m. on the same day and after calling two independent witnesses, Madan Lal and Ram Rattan, who belonged to Hadipatiya, the raiding party proceeded towards the well in question belonging to Ram Prasad's father Mangi Lal. The raiding party led by Lala Ram Dinkar, Inspector, along with the said two witnesses reached the said well at about 4.00 p.m. and found two persons sitting there with 3 bags. On seeing the raiding/preventive party, one of the two persons sitting there ran away and although he was chased by some members of the raiding party, they did not manage to catch him. Inspector Lal Ram Dinkar went up to the other person sitting near the well who disclosed his name as Phool Chand son of Sita Ram and resident of Bardiya. According to the prosecution case, on being asked as to who was the person who had fled, Phool Chand indicated the name of the appellant herein. On being further asked as to the ownership of the bags lying at the spot, accused Phool Chand admitted that the bags belonged to him and to the appellant herein.

10. On the basis of the proceeding in terms of Section 57 of the NDPS Act and the First Information Report filed before the Narcotic Superintendent, one Suresh Badlani was appointed as Investigating Officer and the seized opium along with samples were deposited in the Malkhana. At this point of time the statement of accused Phool Chand was taken where he confessed to the offence complained of.

11. During investigation, accused Ram Prasad and Kanhaiyalal(appellant herein) were served with summons under Section 67 of the NDPS Act. While Ram Prasad was present in the Neemuch office on 24.2.1997 in pursuance of the summons, the appellant herein did not appear before the concerned officer. Accordingly, charge-sheet was filed before the Special Judge under the NDPS Act against Phool Chand and Ram Prasad on 20.5.1997. Subsequently, after fresh summons were issued to the appellant herein, he also appeared before the concerned officer and his statement was taken under Section 67 of the NDPS Act. In his statement the appellant confessed that he too was involved in the smuggling of opium with the co-accused. According to the prosecution, on the basis of his confessional statement, Kanhaiyalal was also arrested in connection with the offence and supplementary challan was filed against him before the Special Judge on 7.8.1997.

12. The defence of the accused was that they have been falsely implicated and accused Phool Chand took a specific plea that on 21.2.1997 he was playing Kabbadi at the sports ground.

16. The answer to the third question, which is relevant to this appeal, was answered in favour of the accused Ram Prasad and the appellant herein and the Special Judge concluded that except for the contradictory confession of these two accused there was no other corroborative evidence and the prosecution had failed to prove that they were included in the smuggling operation.

28. While the above mentioned decisions dealt with other criminal enactments, the next case referred to by Mr. Gambhir, namely, A.K. Mehaboob v. Intelligence Officer, Narcotics Control Bureau is a decision under the NDPS Act with due regard to the provisions of Sections 42 and 67 thereof. The criminal appeal of Shri A.K. Mehaboob was heard alongwith the appeal filed by Shri P.K. Naushad, who were the second and third accused facing charges for having committed an offence under Sections 21 and 29 of the NDPS Ac. While the first accused, Divakaran, was found guilty and convicted on the strength of recovery of brown sugar from him, the two appellants before this Court were acquitted by the trial court but were convicted by the High Court in appeal preferred by the Narcotics Control Bureau. From the facts of the said case, it appears that apart from the statement made by Naushad under Section 67 of the NDPS Act there was other evidence to indicate that business in Narcotic drugs was being transacted from his house. His appeal was therefore rejected. As far as Mehaboob was concerned, his statement did not contain any statement, which could involve him in the offence. The High Court, therefore, allowed the appeal filed by Mehaboob and set aside his conviction.

41. We, accordingly, dismiss the appeal and maintain the order of conviction and sentence passed against the appellant by the High Court.