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2005 DIGILAW 1363 (RAJ)

State of Rajasthan v. Kalu Ram

2005-05-09

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-This appeal has been filed by the State against the Judgment and order dated 13.06.1988 passed by learned Munsif and Judicial Magistrate, First Class, Dungla in Criminal Case No.97/1983, whereby the accused respondent has been acquitted of the charges under Section 4/9 of the Opium Act. 2. In this matter, the leave to appeal was granted on 310.1988. 3. In nut-shell the prosecution case is that on 18.6.1983 PW1 Roshan Lal Sharma, Inspector, Central Bureau of Narcotics, Neemuch, filed a complaint before the SHO, Police Station Bhadsodar, stating inter alia therein that a secret information was received at about 5:00 P.M. and accordingly search of the house and Bada of the accused was made. In the Bada, in the heap of fodder opium weighing 1 kg and 600 gms was found. 4. After usual investigation, the matter came for trial before learned trial court who framed charges against the accused respondent under Section 4/9 of the Opium Act. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 7 witnesses and tendered some documents in evidence. In the statement recorded under Section 313 Cr.P.C. the accused has stated that recovery was made from the Bada which was at a quite distance from the house where he was residing alongwith his family and the Bada was not in his exclusive possession. To support his plea the accused has produced DW1 Jeetmal. 5. The learned trial court after hearing both sides came to the conclusion vide its Judgment and order dated 16.1988 that the prosecution was not able to prove its case beyond reasonable doubt as the recovered contraband article from the Bada was not in exclusive possession and ownership of the accused respondent. Learned trial court further came to the conclusion that evidence regarding sending the sample to the Forensic Science Laboratory was also missing. Taking in to consideration the material available on record the accused was acquitted of the charges framed against him. 6. Hence, the State has preferred this appeal. 7. I have heard learned Public Prosecutor and learned counsel appearing on behalf of the accused respondent and carefully perused the material available on record. 8. Taking in to consideration the material available on record the accused was acquitted of the charges framed against him. 6. Hence, the State has preferred this appeal. 7. I have heard learned Public Prosecutor and learned counsel appearing on behalf of the accused respondent and carefully perused the material available on record. 8. It is to be seen in such matters unless there is convincing evidence to the effect that the contraband material recovered from a person, then, there must be evidence convincing that the contraband material was kept in sealed condition and thereafter it was deposited in the sealed condition in the Malkana and the same should have been sent in the sealed condition to the Forensic Science Laboratory. In such matters, it is also the requirement of the law that place from where the contraband material is recovered should be owned and occupied by the person from whom the recovery of the contraband material has been effected. 9. A perusal of site plan (Exhibit-P/7) clearly indicates that the Bada from where it is alleged that the opium was recovered is 100 yards away from the house of the accused, thus, it is established on the basis of the record that recovery effected of the contraband material was from open place. Further, the witnesses produced in the case stated different version and some of the witnesses stated that contraband material was recovered from the house of the accused whereas others stated that it was recovered from the Bada. 10. The position of the law is settled that where the acquittal has been recorded, then, the Appellate Court should be slow while deciding the matter while reversing the finding of acquittal. The law is also settled on the point that if on the basis of the evidence two views are possible regarding the evidence appreciated by the trial court, then, the view which finds favour with the accused should be accepted. 11. In the instant case, as has been discussed hereinabove, the basic requirement to prove the guilt of the accused is missing. There is no dispute before me that evidence has not been collected to establish that the place from where the contraband material was recovered was exclusively in the possession of the accused respondent. Even otherwise, the evidence recorded in the present matter is not sufficient to prove the guilt of the accused respondent. There is no dispute before me that evidence has not been collected to establish that the place from where the contraband material was recovered was exclusively in the possession of the accused respondent. Even otherwise, the evidence recorded in the present matter is not sufficient to prove the guilt of the accused respondent. The findings recorded by the trial court cannot be said to be illegal, unjust or perverse. 12. In view of the forgoing discussion, I do not find any merit in this appeal filed by the State and same deserves to be dismissed after confirming the Judgment delivered by the learned trial court in Criminal Case NO. 97/1983. 13. In the result, the appeal filed by the State stands dismissed.