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1996 DIGILAW 50 (RAJ)

Bhani Ram v. State of Rajasthan

1996-01-11

D.C.DALELA

body1996
Honble DALELA, J. – By the judgment and order dated 28.11.94, the Special Judge for N.D.P.S. Cases, Churu, convicted the accused-appellant for the offences under sections 8/15 and 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as `the Act) and sentenced him to rigorous imprisonment for 10 years and 3 years, respec- tively, and the fine of Rs. 1,00,000/- and 25,000/- respectively. Both the imprisonment were directed to run concurrently. 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, 970 gms. of Ganja and one kg. of cru- shed capsules of poppy were recovered from the possession of the accused-appellant out of which two samples of each were taken separately and sealed and sent to the Forensic Science Laboratory, Jaipur, for chemical examination, whereupon, it was reported that the samples were found to be Ganja and crushed capsules of poppy. The F.S.L. report is Ex. P. 19. (4). Perusal of Ex. P. 19 would show that the samples contained in two packets marked as `A and `B were received by the Laboratory and the samples contained therein were examined. Obviously, the important question is whether the samples contained in the packets marked as `A and `B were in fact recovered from the possession of the accused-appellant. The recovery memo is Ex.P 1 .A perusal thereof would show that the samples recovered from the possession of the accused-appellant and sealed in two packets were not marked as `A and `B. Nowhere has it been mentioned in Ex.P 1 that the samples recovered from the possession of the accused-appellant were marked as `A and `B. During the course of trial, the prosecution has examined 9 witnesses, but none of them has deposed that the samples recovered from the possession of the accused-appellant were packed in two packets and marked as `A and `B. Thus, from the above, it is evident that the samples recovered from the possession of the accused appellant and sealed were not marked as indicated above and mentioned in F.S.L. report, Ex.P. 19. (5). Ex.P. 18, the copy of the letter of the Superintendent of Police, Churu, addressed to the Director, Forensic Science Laboratory, Jaipur, whereby, both the samples alleged to have been recovered from the possession of the accused-appellant were sent for chemical examination. (5). Ex.P. 18, the copy of the letter of the Superintendent of Police, Churu, addressed to the Director, Forensic Science Laboratory, Jaipur, whereby, both the samples alleged to have been recovered from the possession of the accused-appellant were sent for chemical examination. A perusal of this letter would show that two packets marked as `A and `B were sent to the F.S.L. This letter is dated 7.5.1994. (6). Even if it taken that on 7.5.1994 the office of the S.P. or the S.P., himself, put the above marks on the samples which were sent to the F.S.L., it would mean that the samples were brought in the office of the S.P. or before the S.P. and there the marks as `A and `B were put thereon. But the Mal-Khana register, Ex.P 15-A shows that after the receipt of the samples on 28.4.1994, they were issued only on 10.5.1994. The officer incharge of Mal-Khana, Kishna Ram (PW 7) has deposed that the samples were received in the Mal-Khana on 28.4.1994 and were received thereafter only on 9.5.1994 to the messanger, who carried the samples to F.S.L. Thus, from the evidence of Kishna Ram (PW 7) and Ex. P15-A, it is evident that the samples were not issued from the Mal-Khana on 7.5.1994 when the letter, Ex.P.18 was issued by the S.P., Churu. From this circumstance, it is evident that the samples recovered from the possession of the accused-appellant were not marked as `A and `B as indicated in Ex.P. 18 by the S.P. or in the office of the S.P. Thus, the samples recovered from the possession of the accused-appellant were never marked as `A and `B. If the samples or the packets were so marked and then they were not those which were recovered from the accused-appellant. Therefore, it seems that the F.S.L. report, Ex.P. 19 is not in respect of the samples which were in fact recovered from the accu- sed- appellant. Therefore, it cannot be said that the substance recovered from the accused-appellant were Ganja and crushed capsules poppy. (7). There is also an unexplained discrepancy in the weight of the samples. From the recovery memo, Ex. P1, it is evident that 50 gms. of Ganja was taken as samples which was recovered from the possession of the accused-appellant, but from the Ex.P19 (F.S.L. report)., it is evident that the samples weighing only 4 gms. (7). There is also an unexplained discrepancy in the weight of the samples. From the recovery memo, Ex. P1, it is evident that 50 gms. of Ganja was taken as samples which was recovered from the possession of the accused-appellant, but from the Ex.P19 (F.S.L. report)., it is evident that the samples weighing only 4 gms. Ganja was received by the Forensic Science Laboratory for chemical examination. Similarly from the Ex.P1 (recovery memo), it is evident that a sample weighing 50 gms. of crushed capsules poppy was taken as sample, but from the report (Ex.P 19), it is evident that the sample received by the Laboratory was weighing 55 gms. along with polithin packet. This discrepancy in the weight of the sample has not been explained by the prosecution and consequently, it goes to indicate that the report, Ex.P 19, does not relate to the sample which were recovered from the possession of the accused-appellant. (8). 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 were in fact Ganja and crushed poppy and consequently, the benefit of doubt goes to the accused-appellant. (9). In the result, this 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 offences under Sections 8/15 and 8/20 of the Act. He shall be set at liberty forthwith, if not required in any other case.