The threshold requirements of a confessional statement and the lack of recovery of contraband from the accused's possession are crucial factors in determining the conviction under NDPS Act.

JUDGMENT

1. Present appeal has been filed under Section 378(4) of the Criminal Procedure Code, 1973 (in short 'Cr.P.C.') being aggrieved by the impugned judgment dated 8.1.1999 passed by the II ASJ, Neemuch in Special Sessions Trial Case No.127/1994, whereby respondent/accused Bhanwar Singh has been acquitted for the offence under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act').

2. Brief facts of the case are that on 2.6.1994 at about 6:30 AM at Neemuch-Manasa road near Village Girdouda, Inspector of Narcotic Control Bureau (in short 'NCB') had recovered 800 grams opium from co-accused Babulal and Maikaram. During the investigation it revealed that they have purchased the same from respondent/accused Bhanwar Singh. On that information respondent was arrested on 17.9.1995 and offence has been registered against him. NCB official recorded his statement under Section 67 of NDPS Act but nothing has been recovered from his possession.

3. After completion of the investigation charge sheet has been filed under Section 8/18 of NDPS Act. Learned trial court has framed the charge under Section 8/18 of NDPS Act against the present respondent. The respondent/accused abjured his guilt and claimed for trial. After completion of the trial, learned trial court has acquitted the respondent from the aforesaid charges. Therefore, this appeal has been preferred by the appellant.

4. Learned counsel for the appellant submitted that learned Trial Court erred in not relying the statement (Ex.P/24) of respondent Bhanvar Singh, which was recorded by the investigating officer and the same was admissible in the evidence. Learned Trial Court erred in not taking into consideration of the statement of other co-accused Babulal and Maikaram recorded as Ex.P/26 and P/27, wherein they have clearly stated that opium recovered from them was purchased from the respondent. The acquittal of the respondent is contrary to the law and facts of the case and evidence on record. The prosecution has duly complied with the mandatory provisions of the NDPS Act and proved its case beyond reasonable doubt. Therefore, it is prayed that appeal be allowed and respondent be convicted and sentenced according to the law.

5. Per contra, learned counsel for the respondent opposed the prayer and prayed for dismissal of the appeal by submitting that after appreciation of the evidence Trial Court has rightly acquitted the respondent and prosecution has failed to prove all the charges against the respondent.

6. Learned counsel for both the parties heard at length and perused the impugned judgment as well as the entire record.

7. The prosecution has examined Vikram Singh (PW-1), Kamal Singh (PW-2), Lal Bihari (PW-3), Suresh (PW-4), Patric B. John (PW-5), Inspector Vijay Singh Meena (PW-6), Superintendent M.C. Vijay (PW-7), Inspector Narayan Singh Dhruv (PW-8) and Inspector Madan Singh Meena (PW-9) and exhibited 29 documents.

8. The entire case of the prosecution is based upon the statement of the respondent under Section 67-C of the NDPS Act and statement (Ex. P/26 and P/27) of co-accused Persons. Lal Bihari (PW-3) is the witness of the arrest and search memo of the respondent Bhanvar Singh (Ex.P/2), but he has categorically stated in his statement that during the search of respondent Bhanvar Singh no objectionable thing has been recovered from his possession. He has signed the arrest and search memo Ex. P-2. Inspector Vijay Singh Meena (PW-6) has stated that he got information from the informant that co-accused Maikaram and Babulal will come with the opium on 2.6.1994 and they will supply the same to the Bhanvar Singh. Thereafter he recorded the information (Ex.P/14) in the DRI. Inspector Narayan Singh (PW-8) also deposed in his statement that notice Ex.P/15 has been issued under Section 67-C of the NDPS Act against the respondent Bhanvar Singh and he had appeared before him on 17.9.1995, therefore, he has recorded his statement under Section 67-C of NDP