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1996 DIGILAW 44 (RAJ)

Rawata Ram v. State of Rajasthan

1996-01-10

D.C.DALELA

body1996
Honble DALELA, J. – By the judgment and order dated 30.6.95 the Additional Sessions Judge, Ratangrh (Churu) has convicted accused appellant for the offence under Section 8/15 N.D.P.S. Act and sentenced him to rigorous imprisonment for ten years and a fine of Rs. one lac and in defult of fine two years 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 3 Kg. 250 gms. of poppy husk was recovered from the possession of the accused out of which a sample of 250 gms. was separately sealed and sent to the Forensic Science Laboratory, Jaipur, whereupon it was reported that the sample was found to be poppy husk, The F.S.L. 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 Laboratiory 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. 3. A perusal there of would show that the sample recovered from the possession of the accused and sealed was not marked `A. Nowhere in Ex.P. 13 it has been mentioned that the sample recovered from the possession of the accused was marked A. During the trial the prosecution has examined five 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. (5). Ex.P. 2 is the office copy of the letter of the S.P., Churu 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 F.S.L. for chemical examination and report. This letter is dated 19.1.1989. A perusal of this letter would show that a packet having mark A was sent to the F.S.L. for chemical examination and report. This letter is dated 19.1.1989. Even if it is taken that on 19.1.89 the office of the S.P. or the S.P. himself put the mark A on the sample, which was sent to the F.S.L. 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 9.12.88, it was issued from the Mal Khana of the Police Station only on 3.3.1989. The Officer Incharge of the Mal Khana-Sardar Singh P.W. 3 has deposed that the sample was received in the Mal Khana on 9.12.88 and it was issued therefrom only on 3.3.89 to the messenger, who carried it to the F.S.L. Thus, from the evidence of F.W. 3 and Ex.P. 7A, it is evident that the sample was not issued from the Mal Khana on 19.1.89 when the letter Ex.P. 2 was issued by the S.P., Churu. From the circumstances, 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 then it was not the one which was recovered from the accused-appellant. Therefore, it seems that the F.S.L. report Ex.P. 9 is not in respect of the sample, which was in fact recovered from the accused appellant. Therefore, it cannot be said that the substance recovered from the accused-appellant was poppy husk. (6). There is also unexplained discrepancy in the weight of the sample. From the recovery memo Ex.3, it is evident that the sample was weighing 250 gms. only, whereas the F.S.L. report Ex.P.9 shows that the sample received by it weighed 290 gms. alongwith the cloth bag. Thus, according to the recovery memo Ex.P.3 the weight of the sample of the substance recovered from the accused was 250 gms. net, while the sample received by the F.S.L. was 290 gms. alongwith the cloth bag. The discrepancy in the weight of the sample also goes to indicate that the report Ex. alongwith the cloth bag. Thus, according to the recovery memo Ex.P.3 the weight of the sample of the substance recovered from the accused was 250 gms. net, while the sample received by the F.S.L. was 290 gms. alongwith the cloth bag. The discrepancy in the weight of the sample also goes to indicate that the report Ex. P 9 does not relate to the sample which was recovered from the possession of the accused-appellants. (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 the possession of the accused-appellant was in fact poppy husk 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 order of conviction and sentence is set aside. The accused appellant is acquitted of the offence under Section 8/15 N.D.P.S. Act. He shall be set at liberty forthwith, if not required in any other case.