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2005 DIGILAW 1467 (RAJ)

State of Rajasthan v. Onkar Lal

2005-05-17

SATYA PRAKASH PATHAK

body2005
Judgment Satya Prakash Pathak, J.-This appeal has been filed by the State against the Judgment and order dated 012.1987 passed by learned Munsif and Judicial Magistrate, First Class, Badi Sadari, District Chittorgarh in Criminal Case No. 231/1982, whereby the accused respondents have been acquitted of the charge under Section 4/9 of the Opium Act. 2. The leave to appeal was granted against the accused respondents on 29.04.1988. 3. Briefly stated, the prosecution case is that on 30.10.1982, PW. 8 Prem Singh alongwith PW. 4 Narwar Singh and PW. 5 Arjun Singh were on their patrolling duty. At about 7:10 a.m., they saw two persons coming out of the shop of PW. 3 Amba Lal Nai and were about to board the bus destined to Chittorgarh. On suspicion, they were apprehended and a search was made in presence of Motbirs. From their possession two plastic bags of opium weighing 4 Kgs. and 800 gms. and 200 gms. was recovered. The plastic bags were taken in custody vide Exhibit P/1. Two samples of 30gms. 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 Badi Sadari. 4. After conducting usual investigation, a challan was filed in the Court of learned Munsif and Judicial Magistrate, Badi Sadari, who framed charge under Section 4/9 of the Opium Act against the accused-respondents. The accused denied the charge and claimed trial. The prosecution has examined as many as eight witnesses and tendered some documents in evidence to support their case. 5. After close of the prosecution evidence, the accused-respondents in their statements under Section 313, CrPC, denied the prosecution version. However, no evidence was produced in their favour. 6. The learned trial Court after hearing both sides, by its Judgment and order dated 012.1987 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 by the State. 7. I have heard learned Public Prosecutor for the State and the learned Counsel appearing on behalf of the accused-respondents and carefully scrutinized the material available on record. 8. Hence, this appeal under Section 378 of the Criminal Procedure Code has been filed by the State. 7. I have heard learned Public Prosecutor for the State and the learned Counsel appearing on behalf of the accused-respondents and carefully scrutinized the material available on record. 8. It was contended by the learned Public Prosecutor that the learned trial Court has not properly appreciated the evidence and in fact committed illegality while acquitting the accused respondents of the offence under Section 4/9 of the Opium Act as the prosecution has led reliable evidence in this behalf . .9. On the other hand, learned Counsel appearing on behalf of accused respondents contended that the learned trial Court has properly discussed the evidence and has found that there are material contradictions in evidence led by the prosecution. It was submitted that the trial Court in the present case has found that the prosecution has not led reliable evidence to prove that the contraband material seized and deposited in the Malkhana remained intact in sealed condition till it reached to the FSL. .10. I have considered the rival submissions made before me. 11. In the present matter, it is to be noticed that the motbir witnesses have not supported the prosecution case and the link evidence to prove that the articles recovered were properly sealed and kept in the Malkhana in sealed condition and reached to the FSL in the sealed condition is missing. The learned trial Court has also discussed the material variance in the testimony of the witnesses. 12. The position of law is almost settled on the point that it is the duty of the prosecution to prove beyond all reasonable doubts that the contraband material recovered from the possession of the accused was kept in the Malkhana intact in sealed condition and was deposited in the FSL in the sealed condition. If the evidence led by the prosecution creates doubt regarding the fact that contraband material was kept intact then in that event the case of the prosecution cannot be considered to prove the guilt of the accused. .13. The learned trial Court at page 12 of the Judgment has held that the evidence with regard to depositing the contraband material in the Malkhana intact is missing. It also found the evidence missing relating to remaining the material in the Malkhana after deposit in the sealed condition. .13. The learned trial Court at page 12 of the Judgment has held that the evidence with regard to depositing the contraband material in the Malkhana intact is missing. It also found the evidence missing relating to remaining the material in the Malkhana after deposit in the sealed condition. The learned trial Court further found that it is not proved as to whether the contraband material alleged to have been recovered from the accused-respondents remained intact in the Malkhana and reached the FSL intact for examination. .14. In view of above findings, the learned trial Court acquitted the accused respondents. 15. I have carefully scrutinized the evidence led by the prosecution in this case. The findings recorded by the learned trial Court appears to be legal, just and proper. The link evidence regarding sending material to FSL is missing and further there are material contradictions in the testimony of prosecution witnesses. Motbirs too have not supported the case. .16. Taking into consideration, the material available on record, I am of the opinion that the trial Court has rightly acquitted the accused respondents of the charges levelled against them under the Opium Act. 17. In view of foregoing discussion, I do not find any merit in this case. 18. In the result, the appeal stands dismissed.