Mr. Kuldip Singh, J- Appellants, abovenoted, have preferred present appeal against judgment of conviction dated 23.10.2009 and order of sentence dated 26.10.2009, passed by learned Additional Sessions Judge-III, Bhiwani, vide which both appellants, namely, Rukmani and Raj Kumar alias Raju, have been convicted under Sections 20/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the NDPS Act’) and were sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 1,00,000/- each, in default thereof, to further undergo simple imprisonment for 6 months each. The period of custody already undergone during the trial and investigation of case was ordered to be set off under Section 428 Cr.P.C. from substantive sentence.

2. The prosecution story is that on 18.10.2008, ASI Rajender Singh alongwith other police officials was present at Railway Station, Platform No. 3, Bhiwani, for checking. In the meanwhile, train No. 4519 arrived. When passengers were alighting, they were checked. One lady having, one Katta (bag) plastic of white colour in her right hand was seen coming towards backside of train. On seeing police party, she turned back and started walking briskly. She was apprehended and served with notice under Section 50 of the NDPS Act. She opted for search before a gazetted officer. Therefore, DSP Randhir Singh, GRP, Hisar, was called at spot and the search of the bag was conducted in his presence. On search of same, 5½ kilograms Charas was recovered. 2 samples of 100 grams each and bulk case property was taken into possession in accordance with law. Accused namely Smt. Rukmani was also produced before the Court in compliance with Section 52-A of the NDPS Act. During the police remand, she suffered a disclosure statement that she brought the Charas from Raj Kumar alias Raju Dube (co-accused) and it was to be supplied to Surender alias Pappu, resident of Mithathal, for which she was paid Rs. 1,000/- for every trip. She also demarcated the house of Raj Kumar alias Raju Dube. She also demarcated the house of Pappu alias Surender, son of Hari Singh, who was not present in the house. Accused Raj Kumar alias Raju Dube was arrested. During investigation, vide order dated 7.2.2009, Surender alias Pappu was declared proclaimed offender, whereas Smt. Rukmani and Raj Kumar alias Raju Dube were challaned under Sections 20 and 29 of the NDPS Act. Both of them were accordingly chargesheeted.

3. In support of its case, prosecution examined as many as 10 witnesses. When examined under Section 313 Cr..C., both accused denied the evidence led against them as incorrect and claimed innocence. Accused did not lead any defence in evidence.

4. After hearing prosecution, learned defence counsel and going through the evidence, both accused were convicted under Sections 20 and 29 of the NDPS Act by learned Additional Sessions Judge-III, Bhiwani, and sentenced as aforesaid.

5. We have heard learned counsel for appellants, learned State counsel and have also carefully gone through the file and also perused the lower Court file.

7. First of all, we will take up the case of accused Raj Kumar alias Raju Dube. Only evidence against accused Raj Kumar alias Raju Dube, is that on arrest of accused Rukmani, she was interrogated. She disclosed that Raj Kumar alias Raju Dube use to supply her Charas, which was to be further supplied to Surender alias Pappu and she was paid Rs. 1,000/- for every trip. In pursuance to said disclosure statement, Raj Kumar alias Raju Dube was arrested, but nothing was recovered from him. Now, question would arise as to whether disclosure statement of co-accused without any recovery is sufficient to convict Raj Kumar ?

8. Under Section 27 of the Indian Evidence Act, 1872, only that part of disclosure statement is admissible in pursuance to which recovery is effected. The other part incriminating accused amounts to confession before the police and is not admissible in evidence. Therefore, merely on th