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2003 DIGILAW 356 (PNJ)

Baaj Singh v. State of Haryana

2003-02-26

K.C.GUPTA

body2003
JUDGMENT K.C. Gupta, J. (Oral) - This Criminal Revision has been preferred by the accused against judgment dated 24.1.1991 passed by the Additional Sessions Judge, Sirsa, whereby his appeal against judgment and order dated 11.12.1989 passed by the Additional Chief Judicial Magistrate, Sirsa, was dismissed, vide which he was found guilty and was convicted under Section 9 of the Opium Act and was sentenced to undergo RI for one and a half years and a fine of Rs. 2000/- and in default of payment of fine, he was further sentenced to undergo R.I. for a period of three months. 2. Briefly stated, the facts are that on 5.8.1983, PW-2, ASI Prem Singh received a secret information that Kundan Singh, father of the accused was dealing in the sale of opium and if a raid was conducted at his house, opium could be recovered. The ASI constituted a raiding party, consisting of PW-1 H.C. Krishan Lal, HC Kundan Singh, Constables Hardev Singh, Hukam Chand and Naresh Kumar. PW-3 Gobind Singh son of Karam Singh, resident of village Ellenabad, was also joined. When the raiding party reached the dhani of Kundan Singh, the petitioner was seen coming out of the dhani with a bag in his right hand. He was secured and his bag was searched. As a result of search, 5 kgs of opium was recovered wrapped in a polythene paper. The petitioner could not produce any permit or licence for the possession of the opium. A sample equal to 100 grams was separated. The sample as well as the residue were separately sealed and taken into possession vide recovery memo Exhibit PA attested by the witnesses. At the time of recovery of opium, a country made 12 bore pistol along with six live cartridges of the same bore was also recovered from the petitioner and a separate case was registered against him. On ruqa Exhibit PB sent by the Investigating Officer to the Police Station, formal FIR Exhibit PB/1 was registered by Chhaju Ram, HC. The ASI also prepared the rough site plan Exhibit PC of the place of recovery of opium from the petitioner. On reaching the police station, the petitioner was put behind the bars and the case property was deposited with the MHC with seals intact. The ASI also prepared the rough site plan Exhibit PC of the place of recovery of opium from the petitioner. On reaching the police station, the petitioner was put behind the bars and the case property was deposited with the MHC with seals intact. In due course, the sample was sent to the Assistant Director (Chemistry) F.S.L., Madhuban and on receipt of report Exhibit PD declaring the contents to be opium, the challan against the petitioner was put in Court., 3. Having made out a prima facie case against the petitioner, he was charged under Section 9 of the Opium Act, wherein he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined three witnesses and tendered in evidence the report of the Chemical Examiner. After close of the prosecution evidence, the statement of the petitioner was recorded under Section 313 Criminal Procedure Code wherein he denied the allegations levelled against him. 4. After hearing the learned APP for the State and the defence counsel, the petitioner was found guilty and convicted under section 9 of the Opium Act vide judgment dated 11.12.1989 by the trial Court and was sentenced by order of even date as stated above. Aggrieved against the same, the accused filed an appeal which was dismissed vide judgment dated 24.1.1991 passed by the Additional Sessions Judge, Sirsa. 5. Still dissatisfied, the accused has filed the present criminal revision petition. 6. I have heard Shri G.S. Sidhu, counsel for the petitioner, Shri Sudhir Nehra, AAG, Haryana for the respondent and carefully gone through the record. 7. Learned counsel for the petitioner has drawn my attention to the report of the Chemical Examiner Exhibit PD and contended that the Chemical Examiner had not given a finding that the sample sent to him contained meconic acid and as such he contended that the alleged sample was not that of opium. A perusal of the report of the Chemical Examiner shows that he has not given any finding that the sample analysed contained any percentage of meconic acid. Even the Chemical Examiner has not positively stated that the sample was of opium but he has simply stated that it gives positive test for opium. It is bound to give positive test for opium because it contained 3.1% morphine. Even the Chemical Examiner has not positively stated that the sample was of opium but he has simply stated that it gives positive test for opium. It is bound to give positive test for opium because it contained 3.1% morphine. It has been observed by this Court in State of Punjab v. Ram Lal, 1985(2) RCR 578 that the Chemical Examiner is required to determine all the alkaloids which are present in the opium or a quite number of them, besides morphine so, as to bring it within the ambit of the definition of opium as given in the Act. He has to establish the presence of meconic acid also. In the present case, he has not given any information that the substance contained any meconic acid. Therefore, the sample cannot be said to be of opium. 8. Consequently, this criminal revision is accepted and the petitioner is acquitted of the charge framed against him. His bail bonds stand discharged. Revision allowed.