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Rajasthan High Court · body

1996 DIGILAW 33 (RAJ)

Inderjeet v. State

1996-01-09

D.C.DALELA

body1996
JUDGMENT 1. 1. By the judgment and order dated 25.3.1992 the Additional Sessions Judge No. 1, Hanumangarh convicted the accused appellant for the offence Under Section 8/18 NDPS Act and sentenced him to rigorous imprisonment for ten years and a fine of Rs. One lakh and in default of fine one year's further rigorous imprisonment was directed. 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 17 Kg. of opium was recovered from the possession of the accused out of which a sample of 50 gms. was separately sealed and was sent to the Forensic Science Laboratory, Jaipur, for chemical examination, whereupon it was reported that the sample was found to be opium. The FSL report is Ex. P/15. 4. A perusal of Ex. P/15 would show that the sample contained in a packet marked `A' was received by the Laboratory and the 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. P/1. A perusal thereof would show that the sample recovered from the possession of the accused and sealed was not marked `A'. No where in Ex. P/1 it has been mentioned that the sample recovered from the possession of the accused was marked `A'. During the trial the prosecution has examined six witnesses and none of them has deposed that the sample recovered from the possession of the accused was packed in a packet and marked `A'. Thus, from the above, it is evident that the sample recovered from the possession of the accused and sealed was not marked `A'. Ex. P/12 is the office copy of the letter of Superintendent of Police, Sri Canganagar addressed to the Director, Forensic Science Laboratory, Jaipur by which the sample alleged to have been recovered from the accused was sent for the chemical examination. A perusal of this letter would show that a packet having mark `A' was sent to the FSL for chemical examination and report. This letter is dated 21.10.1988. A perusal of this letter would show that a packet having mark `A' was sent to the FSL for chemical examination and report. This letter is dated 21.10.1988. Even if it is taken that on 21.10.1988 the office of the S.P. or the S.P. himself put the mark `A' on 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 Mal Khana Register Ex. P/7A of the Police Station shows that after the receipt of the sample on 19.10.1988, it was issued from the Mal Khana of the Police Station only on 24.10.1988. The Officer Incharge of the Mal Khana - Nakshtra Singh PW 3 has deposed that the sample was received in the Mal Khana on 19.10.1988 and it was issued therefrom only on 24.10 1988 to the messenger, who carried it to the FSL. Thus, from the evidence of PW 3 and Ex. P/7A, it is evident that the sample was not issued from the Mal Khana on 24 10.1988 when the letter Ex. P/12 was issued by the S.P., Sri Ganganagar. From this circumstance, it is evident that the sample recovered from the accused was not marked `A' by the S.P. or in the office of the S.P. Thus, the sample recovered from the accused-appellant was never marked `A'. If any sample or packet was marked 'A' then it was not the one which was recovered from the accused-appellant. Therefore, it seems that the FSL report Ex. P/15 is not in respect of the sample, which was in fact recovered from the accused appellant. Therefore, it cannot be said beyond reasonable doubt that the substance recovered from the accused-appellant was opium. 5. There is also a discrepancy in the weight of the sample. From the recovery memo Ex. P/1, it is evident that the sample was weighing 50 gms. only, whereas the FSL report Ex. P/15 shows that the sample received by it weighed 53 gms. along with the polythene wrapper. Thus, according to the recovery memo Ex. P/1 the weight of the sample of the substance recovered from the accused was 50 gms. net, while the sample received by the FSL was 53 gms. along with the polythene wrapper. P/15 shows that the sample received by it weighed 53 gms. along with the polythene wrapper. Thus, according to the recovery memo Ex. P/1 the weight of the sample of the substance recovered from the accused was 50 gms. net, while the sample received by the FSL was 53 gms. along with the polythene wrapper. The discrepancy in the weight of the sample also goes to indicate that the report Ex. P/15 does not relate to the sample, which was recovered from the possession of the accused-appellant. 6. From the above discussion, it is evident that the prosecution has not been able to prove beyond reasonable doubt that the substance recovered from the possession of the accused-appellant was in fact opium and consequently the benefit of doubt goes to the accused-appellant. 7. In the result, the appeal is allowed on the doctrine of benefit of doubt. The order of conviction and sentence is set aside. The accused-appellant is acquitted of the offence Under Section 8/18 NDPS Act. He shall be set at liberty forthwith, if not required in any other case.Appeal Allowed. *******