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2013 DIGILAW 1450 (RAJ)

State of Rajasthan v. Bhup Singh @ Bhupat Singh

2013-08-22

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant appeal has been preferred on behalf of the State of Rajasthan being aggrieved of the judgment dated 1.12.1989 passed by the learned Addl. Sessions Judge, Nohar is Sessions Case No. 31/1988 titled as State v. Bhupat Singh , whereby the respondent Bhup Singh alias Bhupat Singh was acquitted from the charge under Section 8/17 of the N.D.P.S. Act. 2. Briefly stated the facts necessary for the disposal of this appeal are that Mahaveer Prasad (PW-3), the S.I I.O., Police Station Bhirani is alleged to have received an information that the respondent herein had stored opium at his 'dhani'. The information was recorded in the memo Ex.P-6. Thereafter, the S.H.O. proceeded to the respondent Bhup Singh alias Bhupat Singh's 'dhani' and initiated the search proceedings. It is alleged that the respondent Bhup Singh alias Bhupat Singh was found present in the 'kotha' to the left side of the 'dhani'. The search of the 'kotha' was undertaken and it is alleged that a blue coloured suitcase was found therein. On opening the suitcase, two packets of opium like solid were found packed in plastic bags. On weighment, the packets were found weighing 750 gms. and 1 kg. and 100 gms. respectively. Another packet was found lying near the suitcase, in which, scales, weights etc., were packed. In the said packet also, some blocks of opium were concealed, which on weighment were found to be 650 gms. The total contraband was found to be weighing 2 kg and 500 gms. The Seizure Officer arrested the accused prepared the seizure memo Ex.P-1 and thereafter brought the accused to the Police Station, Bhirani, where, F.I.R. Ex.P-8 was registered. 3. After investigation, a charge-sheet was submitted against the accused for the offence under Section 8/18 of the N.D.P.S. Act. The case was committed to the Court of the learned Addl. Sessions Judge, Nohar, where charge was framed against the accused respondent for the offence under Section 8/17 of the N.D.P.S. Act. The accused respondent pleaded not guilty and claimed trial. The prosecution examined five witnesses in support of its case. The accused in his statement recorded under Section 313 Cr.P.C. denied the allegations of the prosecution and pleaded that the 'dhani' from where the recovery was effected was of his father Sanwant Singh. His father and five brothers lived in the 'dhani' jointly. The prosecution examined five witnesses in support of its case. The accused in his statement recorded under Section 313 Cr.P.C. denied the allegations of the prosecution and pleaded that the 'dhani' from where the recovery was effected was of his father Sanwant Singh. His father and five brothers lived in the 'dhani' jointly. Ram Swaroop (DW-1) was examined as a defence witness. 4. At conclusion of the trial, the learned trial Judge proceeded to hold that the place of recovery was not in the exclusive possession of the accused and as such, he was entitled to be acquitted. The State of Rajasthan has now preferred the instant appeal assailing the judgment of acquittal of the accused respondent. 5. Learned Public Prosecutor urged that the learned trial Judge committed a grave error in acquitting the accused respondent from the charge under Section 8/17 of the N.D.P.S. Act. He submitted that the respondent was found present in the 'kotha' from where opium weighing 2 kg. and 500 gms. was recovered and as such, the learned trial Judge has committed a grave error in holding that the respondent was not having in the exclusive possession of the place from where the recovery was effected. He thus urged that the impugned judgment dated 1.12.1989 passed by the learned Addl. Sessions Judge, Nohar acquitting the accused respondent from the charge under Section 8/17 of the N.D.P.S. Act deserves to be set aside. 6. Nobody appeared on behalf of the respondent to plead the case. 7. Heard and considered the arguments advanced by the learned Public Prosecutor, perused the judgment impugned as well as the record. 8. The learned trial Court acquitted the respondent on the ground that the place of recovery was not in the exclusive conscious possession of the accused and that the 'kotha' was an open place accessible to all and sundry. For appreciating this aspect, the seizure memo Ex.P-1, the site plan Ex.P-7 and the description memo Ex.P-7A need to be perused. In the seizure memo Ex.P-1 it is not mentioned that the 'kotha' was having any doors. Likewise, the site plan Ex.P-7 and the description memo Ex.P-7A also do not mention that the 'kotha' from where the recovery was effected was having any doors. A specific question was put to the Seizure Officer Mahaveer Prasad (PW-3) that the 'kotha' was not having any doors. Likewise, the site plan Ex.P-7 and the description memo Ex.P-7A also do not mention that the 'kotha' from where the recovery was effected was having any doors. A specific question was put to the Seizure Officer Mahaveer Prasad (PW-3) that the 'kotha' was not having any doors. The witness admitted that it was not mentioned in the document Ex.P-7A i.e. the description memo of the site that the 'kotha' was having any doors. 9. The learned trial Judge also held that the dhani' from where the recovery was effected was in the joint possession of Sanwant Singh and his five sons. The Seizure Officer Mahaveer Prasad (PW-3) in his cross-examination feigned ignorance about the fact of the 'dhani' being in the joint possession of the father of the accused and his four brothers. The learned trial Judge also observed that the independent motbir of the recovery namely Om Prakash (PW-1) did not support the prosecution case. The other witness Ramji Lal was not examined by the prosecution. 10. In view of the aforesaid factual scenario, this Court is of the opinion that the learned trial Judge has committed no error, illegality or perversity in acquitting the respondent Bhup Singh alias Bhupat Singh from the charge under Section 8/17 of the N.D.P.S. Act. The prosecution has failed to prove that the place of recovery was in the exclusive possession of the accused and as such the accused was rightly acquitted by the learned trial Court by the impugned judgment dated 1.12.1989 passed by the learned Addl. Sessions Judge, Nohar. The judgment of acquittal cannot be held to perverse, illegal or based on inappropriate appreciation of evidence so as to call for any interference by this Court in this appeal challenging the respondent's acquittal.Resultantly, the appeal being bereft of any force is hereby dismissed.Record be sent back forthwith.Appeal dismissed. *******