Crl.A. 259 of 2006                                                                                                                                                          REPORTABLE 1

     IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 259 OF 2006

DAULAT RAM & ANR. ...... APPELLANTS

VERSUS

CBN MANDSAUR, M.P. ...... RESPONDENT

O R D E R

1. This appeal arises out of the following facts:

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 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  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

Crl.A. 259 of 2006                                                                                                                                                          REPORTABLE 2

Daulat Ram admitted that some of the undeclared opium  

had  been  hidden  in  his  field.   Thereafter  Mangilal  

appellant was also interrogated 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 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  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  of  P.W.  1  

Bhanwarilal Patwari who had identified the fields as  

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

Crl.A. 259 of 2006                                                                                                                                                          REPORTABLE 3

to the High Court too was  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 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 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 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  Mr.  

Sharma, that an over all accounting of the opium has to  

be  made  after  the  notification  has  been  issued  

identifying the percentage of opium 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

Crl.A. 259 of 2006                                                                                                                                                          REPORTABLE 4

opium  produced  everyday.   There  is  no  evidence  or  

suggestion  to  show  that  the  opium  which  had  been  

recovered had been declared 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.   

5. Mr.  Sharma  has,  however,  cited  Bheru  lal v.  

State of Rajasthan RLW 2003 (2) Raj 1056 to contend  

that till the final quantification 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 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  

residential house of the accused.  In the case before  

us, as per the prosecution story, the opium had been  

recovered from 3 feet underground.

6. It is equally true that no independent witness  

has supported 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.  

Crl.A. 259 of 2006                                                                                                                                                          REPORTABLE 5

7. The appeal is, accordingly, dismissed.

...... ..................J [HARJIT SINGH BEDI]

........................J [CHANDRAMAULI KR. PRASAD]

NEW DELHI JANUARY 27, 2011.