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2005 DIGILAW 1400 (RAJ)

State of Rajasthan v. Ramlal

2005-05-10

SATYA PRAKASH PATHAK

body2005
Judgment Satya Prakash Pathak, J.-This S.B. Criminal Appeal has been filed by the State against the Judgment and order dated 09.05.1988 passed by the learned Munsif and Judicial Magistrate, Dungla in Criminal Case No. 95/83, whereby the accused-respondent has been acquitted of the charge under Section 4/9 of the Opium Act. 2. Briefly stated, the prosecution case is that PW. 6 Roshan Lal Sharma, Inspector, Central Narcotics Bureau, received a secret information on 18.06.1983 and he proceeded to verify the information received regarding opium in possession of the accused-respondent at the village Lothiyana in the morning. The house of the accused-respondent was searched and in the Bada, where animal used to be kept in presence of Motbirs, one cloth bag was found berthed in sand. The cloth bag after opening, revealed that it was containing opium. The weight of the opium was 3kg. 400 Gms. Two samples of 30 gms. each were taken for chemical examination, which were seized and sealed at the spot. Written report of the incident was submitted at the Police Station Hathsoda. 3. After conducting usual investigation, a challan was filed in the Court of learned Munsif and Judicial Magistrate, Dungla, who framed the charge under Section 4/9 of the Opium Act against the accused-respondent. The accused denied the charges and claimed trial. The prosecution has examined as many as six witnesses and tendered some documents in evidence to support his case. 4. After close of the prosecution evidence, the accused-respondent in his statement under Section 313 CrPC, denied the prosecution version and stated that nothing was recovered from his field and he has been falsely implicated in the matter. 5. The learned trial Court after hearing both the sides, by its Judgment and order dated 09.05.1988 acquitted the accused of the charge under Section 4/9 of the Opium Act. Hence, this appeal under Section 378 of the Criminal Procedure Code has been filed. 6. I have heard learned Public Prosecutor for the State and the learned Counsel for the accused-respondent and carefully scrutinized the material available on record. 7. The learned trial Court while acquitting the accused found that the prosecution was not able to prove that the opium recovered from the place, was actually owned and possessed exclusively by the accused-respondent. 6. I have heard learned Public Prosecutor for the State and the learned Counsel for the accused-respondent and carefully scrutinized the material available on record. 7. The learned trial Court while acquitting the accused found that the prosecution was not able to prove that the opium recovered from the place, was actually owned and possessed exclusively by the accused-respondent. The learned trial Court further found that there was material variance in the prosecution evidence, inasmuch, as the Motbir witnesses have stated the place from where the opium was recovered, was one of Shri Pratha. The learned trial Court further found that as per the provisions of Opium Act and more particularly Section 19 of the Act, it was the duty of the Investigating Officer, first to have recorded secret information and thereafter, before search, a warrant was required to be obtained, which has not been done in the present matter. 8. The learned trial Court also found that in case for some reasons, it was not possible to obtain the warrant, then reasons thereof ought to have been recorded. The learned trial Court after assessing the entire evidence, came to the conclusion that the accused was liable to be acquitted of the charge levelled against him. The learned trial Court further found that the link evidence regarding sending the sealed samples to the Forensic Science Laboratory is missing and the FSL Report so received, has not been marked as Exhibit. 9. Now, it is to be seen whether the Judgment of acquittal against the accused-respondent is based on proper appreciation of evidence or it requires interference by this Court. 10. After carefully examining the matter, I find that under the provisions of the Opium Act, certain duties having been cast on the Investigating Agency while conducing investigation. In this case, admittedly, no compliance of Section 19 of the Opium Act has been done. The another aspect which completely decides the fate of the present case, that it is also the duty of the prosecution to prove beyond all reasonable doubt that infact the contraband material recovered was in possession of the accused-respondent and the place from where it was recovered, was exclusively possessed by the accused. 11. The another aspect which completely decides the fate of the present case, that it is also the duty of the prosecution to prove beyond all reasonable doubt that infact the contraband material recovered was in possession of the accused-respondent and the place from where it was recovered, was exclusively possessed by the accused. 11. In view of the above, it is not necessary to further go into the details of the matter and it appears that the Judgment of acquittal recorded by the learned trial court suffers from no infirmity. The matter is of 1983 and more than 22 years have elapsed. 12. Taking into consideration all the fact and circumstances of the case and the finding that the prosecution could not prove the charges levelled against the accused-respondent, the appeal filed by the State deserves to be dismissed. 13. In the result, the appeal stands dismissed.