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2015 DIGILAW 361 (RAJ)

Kistoor Singh v. State of Rajasthan

2015-02-09

BANWARI LAL SHARMA

body2015
JUDGMENT 1. - The petitioner has preferred this revision petition against the judgment dated 18.08.1994 passed by the learned Additional Sessions Judge, Barmer in Criminal Appeal No.7/1993 affirming the judgment and order dated 15.01.1993 passed by the learned Judicial Magistrate, Barmer in Criminal Case No.333/1986 whereby the petitioner was convicted for the offence under Section 4/9 of Opium Act and was sentenced to undergo two years' rigorous imprisonment with fine of Rs. 1,000/-, in default whereof to further undergo six months' simple imprisonment. 2. The brief facts of the case are that Shri Asharam (PW-1), Criminal Assistant, Office of S.P., Barmer, lodged an FIR to the effect that on 19.09.1985, at about 06.05 a.m., he received an information from his mukhbir that Kistoor Singh and Chhog Singh, r/o village Deemri were keeping opium in their possession. On this information, he reached there with the police party where he found Kistoor Singh and Chhog Singh. When the shop was searched in their presence, two bags were found containing 1.300 gm and 1 kg. opium, which was recovered and after taking 30 gm. sample from each bag and sealing the same, both the persons were arrested and were taken to the police station. 3. On the basis of the said report, the police registered the case and commenced investigation. After investigation, the police filed charge-sheet against the petitioner-accused and Chhog Singh. Thereafter, the learned trial Court framed charge under Section 4/9 of the Opium Act against the petitioner-accused and Chhog Singh to which they denied and claimed trial. To substantiate the charges, the prosecution examined as many as 10 witnesses. Thereafter, the accused were examined under Section 313 Cr.P.C. and claimed the prosecution evidence as false and examined Khangar Ram (DW-1) in defence. 4. After hearing the learned counsel for the parties, the learned trial Court, vide judgment and order dated 15.01.1993, acquitted the co-accused Chhog Singh but convicted and sentenced the petitioner-accused as aforesaid. 5. Being aggrieved of the aforesaid judgment and order dated 15.01.1993, the petitioner-accused preferred appeal before the learned appellate Court, which was dismissed vide judgment dated 18.08.1994. 6. Again dissatisfied with the aforesaid judgments and order, the petitioner-accused has preferred this revision petition, which was admitted for hearing vide order dated 14.08.1994 and the record of both the Courts below was called for. 7. I have heard Mr. PN Mohnani, learned counsel for the petitioner and Mr. 6. Again dissatisfied with the aforesaid judgments and order, the petitioner-accused has preferred this revision petition, which was admitted for hearing vide order dated 14.08.1994 and the record of both the Courts below was called for. 7. I have heard Mr. PN Mohnani, learned counsel for the petitioner and Mr. LR Upadhyay, learned Public Prosecutor. 8. Mr. Mohnani, learned counsel appearing on behalf of the petitioner submitted that the link evidence regarding the fact that the samples remained intact till they reached to the FSL is missing. The malkhana register were not produced in the Court below. Thus, the prosecution has failed to prove its case beyond reasonable doubt. It was further submitted by him that the learned trial Court has acquitted Chhog Singh on the same set of evidence and the case of the present petitioner-accused is not distinguishable than that of him. The alleged recovery was said to be made from the shop which was in the joint possession of the petitioner-accused and Chhog Singh. Moti (PW-10), owner of the shop, clearly stated that the shop was rented to both of them. But the learned trial Court, without considering all these facts, acquitted Chhog Singh and on the same set of evidence, convicted and sentenced the petitioner-accused. It was also submitted by him that no explanation was sought for from the petitioner-accused regarding FSL Report while his examination under Section 313 Cr.P.C. and thus the whole proceedings stand vitiated. In support of his contention, he has placed reliance upon the judgment delivered in the cases of Jassa Ram v. State of Rajasthan, 1995(4) Crimes 600 . 9. Per contra, learned Public Prosecutor supported the impugned judgment of conviction and order of sentence and submitted that the prosecution was successful in proving its case and the learned trial Court, while considering all the aspects of the matter, rightly convicted and sentenced him and was further rightly upheld by the appellate Court, which does not warrant any interference by this Court. 10. I have considered the submissions made by the learned counsel for the parties and perused the record. 11. Moti (PW-10), in his statement, deposed that he did not know as to whether the business of the petitioner-accused and Chhog Singh was joint or not. 10. I have considered the submissions made by the learned counsel for the parties and perused the record. 11. Moti (PW-10), in his statement, deposed that he did not know as to whether the business of the petitioner-accused and Chhog Singh was joint or not. He only stated that the petitioner-accused Kistoor Singh and Chhog Singh both used to sit in the shop and he also purchased the articles from the shop. Hence, the learned trial Court has rightly held that the shop was not in joint possession of the petitioner-accused and Chhog Singh. 12. From a careful scanning of evidence, it is clear that the main witnesses are the official witnesses, who have stated about the search of dhani, recovery of opium, sealing of samples etc. It also reveals that the malkhana incharge Ram Singh (PW-6) was produced in the witness-box, who deposed about deposition of articles in the malkhana and the further deposition in the FSL etc. A copy of the Malkhana Register (Ex.P/8) was also produced but the same could not be proved. In his cross-examination, he clearly stated that the copy of malkhana register (Ex.P/8) does not match with the original malkhana register. Thus, the prosecution has failed to produce the complete link of evidence. 13. In the case of Jassa Ram (supra), the learned trial Magistrate did not put any question regarding the contents of the FSL Report to the petitioner while recording his plea under Section 313 Cr.P.C. The Coordinate Bench of this Court thus held that since the petitioner in that case was not confronted with the FSL report, a great prejudice was caused to him and found that a serious infirmity was committed by the lower Court and also held that the contents of the FSL Report could not be read against the petitioner. Further, there is no evidence to establish the seals of samples remained intact till it reached the FSL. Therefore, this link evidence is also missing. 14. In the present case also, no question was put to the petitioner-accused regarding the FSL Report while his examination under Section 313 Cr.P.C. and no other evidence was led to prove that the recovered contraband was opium. Thus, in absence of this, his conviction cannot be sustained. 15. Therefore, this link evidence is also missing. 14. In the present case also, no question was put to the petitioner-accused regarding the FSL Report while his examination under Section 313 Cr.P.C. and no other evidence was led to prove that the recovered contraband was opium. Thus, in absence of this, his conviction cannot be sustained. 15. From the prosecution evidence, it reveals that merely saying that by smelling, the material, alleged to have been recovered from the possession of the petitioner, was opium is not at all reliable and sufficient evidence and on the basis of such scanty evidence, the prosecution has miserably failed to prove beyond reasonable doubt that the article recovered from the possession of the petitioner was opium and only the basis of this ground, the petitioner is entitled to be acquitted. 16. In view of the above, this revision petition deserves to be allowed, which is hereby allowed. The impugned judgment and order of the learned trial Court dated 16.01.1993 and that of the learned appellate Court dated 18.08.1994 are set aside and the petitioner-accused is acquitted from the offence under Section 4/9 of the Opium Act. He is on bail. His bail bonds are cancelled and he need not to surrender. 17. A copy of this order with the record of this case be sent to the learned Court below.Petition allowed. *******