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2002 DIGILAW 1156 (PNJ)

Jagan Nath - v. State Of Haryana -

2002-10-30

VINEY MITTAL

body2002
Judgment Viney Mittal, J. 1. The present revision petition has been filed by Jaggan Nath son of Chanan Ram against the order dated February 27, 1989 passed by the Judicial Magistrate Ist Class, Mandi Dabawli whereby the petitioner has been convicted under Section 9 of the Opium Act and sentenced to undergo rigorous imprisonment for a period of six months and further to pay a fine of Rs. 100/-. The appeal filed by the petitioner has been dismissed by the learned Additional Sessions Judge, Sirsa vide judgment dated July 4, 1989. 2. As per the prosecution version, on March 21, 1983 Jai Narain, SI/SHO alongwith police partly was present at Bhatinda Chowk in connection with patrolling and excise checking, he received secret information that Jaggan Nath son of Chanan Ram who was in the habit of selling opium, had alighted from the bus at old bus stand with opium in his possession. A raid was conducted after constituting the raiding party. The petitioner was apprehended and he was found to be possessing 2 kgs. 10 grams opium wrapped in a glazed paper. The sample was taken. On investigation, challan was presented and ultimately the petitioner was convicted as foresaid. 3. I have heard Shri D.N. Ganeriwala, the learned counsel for the petitioner and Shri Rajbir Sehrawat, the learned Deputy Advocate General, Haryana for the respondent and with their assistance have gone through the record. 4. Shri D.N. Ganeriwala, the learned counsel for the petitioner has pointed out that in fact there were major discrepancies in the statements of the witnesses which were brought to the notice of the learned Additional Sessions Judge as well. Shri Ganeriwala has brought to my notice paragraph No. 6 of the judgment of the learned Additional Session Judge. I find that the major discrepancies have been noticed by the learned Additional Sessions Judge but the same have been brushed aside by merely observing that "these discrepancies are the natural outcome of truthful statements". 5. Not only this, the learned Additional Sessions Judge has also ignored another valid argument raised on behalf of the petition. It was pointed out by the learned counsel for the petitioner that the Chemical Examiners report Ex. PX was silent, whether the sample contained meconic acid or not and if no report is given whether any meconic acid was present, then the aforesaid substance could not be taken to be opium. It was pointed out by the learned counsel for the petitioner that the Chemical Examiners report Ex. PX was silent, whether the sample contained meconic acid or not and if no report is given whether any meconic acid was present, then the aforesaid substance could not be taken to be opium. However, the aforesaid argument although was noticed by the learned Additional Session Judge as well but the same was brushed aside by merely observing that simply because the presence of meconic acid was not mentioned, that would not mean that Chemical Examiner had given incorrect report. It is apparent that the entire approach of the learned Additional Sessions Judge was improper and against the settled proposition of law. 6. I have gone through the entire evidence on the record and I find that in view of the submissions raised by Shri Ganeriwala, it cannot be suggested that the prosecution has been able to prove the guilt of the petitioner beyond all reasonable doubts. Consequently, the present revision petition is allowed after setting aside the judgments of the Courts below. The petitioner is ordered to be acquitted of the charge.Petition allowed.