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1996 DIGILAW 137 (RAJ)

Chela Ram v. State of Rajasthan

1996-02-01

D.C.DALELA

body1996
JUDGMENT 1. - By the judgment dated 23.1.93 of the Additional Sessions Judge, Nohar, the accused appellant has been convicted for the offence under Section 8/ 15 , Narcotic Drugs And Psychotropic Substances Act and sentenced to Rigorous Imprisonment for ten years and a fine of Rs. one lac against this Conviction and sentence this appeal has been preferred. 2. I have heard the arguments of both the sides. 3. According to the prosecution, 5 kgs. of crushed capsules of poppy husk was recovered from the possession of the accused on 21. 12. 91. Out of the contraband recovered, a sample of 200 gms. was taken separately and sealed and sent to the Forensic Science Laboratory, Jaipur for chemical examination, where upon it was reported that the sample was found to he crushed capsules of poppy. The FSL. report is Ex.P.9 4. A perusal of Ex.P.9 would show that the sample contained in a packet marked A was received by the Laboratory and sample contained therein was examined. Obviously the important question is whether the sample contained in the packet marked A was in fact recovered from the possession of the accused. The recovery memo is Ex. P1. A perusal thereof would show that the sample recovered from the possession of the accused and sealed was not marked A. Nowhere in the Ex. P1, it has been mentioned that the sample recovered from the possession of the accused was marked A. During the trial the prosecution has examined 7 witnesses and none of them has deposed that the sample recovered from the possession of the accused was packed and sealed in a packet and marked A. Thus, from the above, it is evident that the sample recovered from the possession of the accused sealed and packed was not marked A. PW 6 is S.H.O Tara Chand, who has effected the recovery. He has also not deposed that the sample recovered from the possession of the accused was sealed in a packet and marked A. 5. Ex. P.8 is the office copy of the letter of the S.P., Sri Ganganagar addressed to the Director, Forensic Science Laboratory, Jaipur be which the sample alleged to have been recovered from the possession of the accused was sent for the chemical examination. A perusal of this letter would show that packet marked A was sent to the FSL for chemical examination. A perusal of this letter would show that packet marked A was sent to the FSL for chemical examination. This letter is dated 26.12.91. Even if it is taken that on 26.12.91 the office of the S.P. or the S.P. himself put the mark A on the packet of the sample, which was sent to the FSL, it would mean that the sample was brought in the office of the S.P. or before the S. P and there mark A was put, but the Mal Khana Register Ex. P.5A of the Police Station shows that after the receipt of the sample on 21.12.91, it was issued from the Mal Khana only on 6.2.92 to the messenger, who took it to the FSL. The Officer Incharge of Mal Khana Braham Prakesh (PW 4) has deposed that the sample was received in the Mal Khana on 21.12.91 and it was issued therefrom only on 6.2.92 to the messenger, who carried it to the FSL. The messenger Om Praskash (PW 2) has deposed that the sample was received by him from Mal Khana on 6.2.92 for carrying it to the FSL. Thus, from the evidence of PW 4, PW 2 and Ex.P.5A, it is evident that the sample recovered from the accused was not is From the Mal Khana on 26.12.91 when the letter Exp.8 was issued by the S.P., Sri Ganganagar. From this circumstances, it is evident that the sample recovered from the accused - appellant was not marked A by the S.P. himself or in the office of the S.P. Thus, the sample recovered (Sic.) If any sample or packet was marked A that it was not the one, which was recovered from the accused appellant. Therefore, it seems that the FSL report Ex.P9 is not in respect of the sample, which was in fact recovered from the possession of the accused-appellant. Therefore, it cannot be said that the substance recovered from the accused-appellant was opium the husk or crushed capsules of opium. 6. A perusal of FSL report Ex. P.9 would show that the sample was received by the FSL through the letter of the S.P. dated 1.2.92. Ex P.8 the office copy of the S.P., Sri Ganganagar clearly shows that the S.P.'s letter is dated 26.12.91. 6. A perusal of FSL report Ex. P.9 would show that the sample was received by the FSL through the letter of the S.P. dated 1.2.92. Ex P.8 the office copy of the S.P., Sri Ganganagar clearly shows that the S.P.'s letter is dated 26.12.91. This also goes to indicate that the sample in respect of which the FSL report Ex.P.9 was not recovered from the possession of the accused-appellant. 7. From the above discussion, it is evident that the prosecution has not been able to prove beyond reasonable doubt that the substance recovered from possession of the accused-appellant was in fact opium husk or crushed capsules of opium and consequently the benefit of doubt goes to the accused-appellant. 8. In the result, the appeal is allowed on the doctrine of benefit of doubt. The judgment and order of convict ion and sentence is set aside. The accused-appellant is acquitted of the offence under Section 8/ 15 of the N. D. P.S. Act. He shall be set at liberty forthwith, if not required in any other case.Appeal allowed. *******