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2016 DIGILAW 857 (RAJ)

Arjun Kumar v. State of Rajasthan

2016-06-10

G.R.MOOLCHANDANI

body2016
JUDGMENT : Mr. G.R. Moolchandani, J. Both these two criminal revision petitions No. 147/98 and 148/98 have been filed by Arjun Kumar and Jagdish separately against the judgment of Additional Sessions Judge, Bali, passed in criminal appeals No. 27/90 and 26/90 on 3.3.1998 convicting both the accused persons under Section 4/9 of Opium Act by confirming the judgment of Judicial Magistrate, Sumerpur passed in Criminal Original Case No. 63/1981 convicting the accused persons under Section 4/9 of the Opium Act and sentencing them for a period of 3 years' R.I. and a fine of Rs. 5,000/- each. 2. In nutshell, the story of the prosecution is that on 12.4.1981 at about 10:30 A.M., both the accused persons were found coming from Sumerpur side and the raid party was there on clandestine information. The accused Arjun fled away leaving his bag and accused Jagdish was apprehended, opium was detected in both bags, allegedly 1 kg from the bag abandoned by Arjun Kumar and 2 kg from the bag seized from Jagdish. 30 grams of opium respectively from each bag was taken for sample and was sent to the FSL. After investigation, challan was presented against both the accused persons, they were tried by the learned Judicial Magistrate, Sumerpur and were convicted under Section 4/9 of Opium Act for a period of 3 years' R.I. and a fine of Rs. 5,000/- each. The impugned judgment was challenged before the first appellate court and the first appellate court decided both the appeals No. 26/90 and 27/90 on 3.3.1998 by affirming the conviction and sentence. 3. Questioning the finding of the courts below, these two appeals have been filed by both the accused Arjun Kumar and Jagdish separately. 4. Both the accused Arjun Kumar and Jagdish have been convicted by the trial court by a common order dated 28th June, 1990 passed in Criminal Original Case No. 63/81. Both these revisions are tagged for the reasons dwelt above, both the revisions are being decided by this single common order. 5. Learned counsel for the revisionists has contended that learned trial court has erroneously passed the impugned order, there is no independent evidence of the alleged recovery, motbirs PW-1 & PW-2, alleged to be the testimony witnesses of recovery have not support the recovery and have turned hostile. 6. 5. Learned counsel for the revisionists has contended that learned trial court has erroneously passed the impugned order, there is no independent evidence of the alleged recovery, motbirs PW-1 & PW-2, alleged to be the testimony witnesses of recovery have not support the recovery and have turned hostile. 6. According to the prosecution 30 grams of opium was taken from each bag allegedly recovered from the accused persons Arjun Kumar and Jagdish, whereas the FSL report indicates that 38 grams and 39 grams of opium as found in each poly bag marked as A/1 and B/1, moreover the samples were given to the constable PW-5 Ratan Singh on 18.4.1981, but the same were deposited with the FSL as per his statement on 23.4.1981 but during this period between 18 4.1981 to 23.4.1981 where the samples were kept and in whose custody, it is also not established, so the link evidence of keeping the alleged sample intact, has candidly been breached. Obtaining the samples from Pali and depositing the same at Jaipur hardly takes six hours in road journey, but Ratan Singh PW-5 has retained these samples for a week's time without any explanation. The samples were tampered with and increase in their weight as reported by FSL vide Ex.10 establishes this fact. Prosecution has not adduced any independent witness. The police constable who was a member of raid party has conducted investigation, which too has vitiated the entire investigation. The so called independent witnesses of alleged recovery have become hostile and rest all the witnesses are from police department. Recovery and the link evidence is lacking, despite that learned trial court has convicted revisionists-accused persons in a perverse and erroneous way. Hence, looking to the manifest illegality which has been committed by the learned trial court and repeated by the first appellate court, may please be undone by allowing the revisions and quashing the conviction and sentence passed by the impugned judgments. Hence, looking to the manifest illegality which has been committed by the learned trial court and repeated by the first appellate court, may please be undone by allowing the revisions and quashing the conviction and sentence passed by the impugned judgments. Conversely, learned Public Prosecutor has contended that the trial court has not committed any error and judgment passed by the learned trial court, subsequently affirmed by the first appellate court are perfectly well, both the revisionists-accused persons were detained with contraband opium and the FSL has also confirmed that the recovered material was opium, so there is no reason to interfere with the outcome of the verdicts passed by the trial court as well as by the first appellate court and concurrent finding of both the courts below is perfectly well so, revisions of the accused persons may be dismissed. 7. After giving a patient hearing to the contentions of both sides, examining the impugned judgments and after perusing the material available on record and after analysing and evaluating the evidence, it is evident; that both the recovery witnesses, Kishore and Ganesh Ram have not support the story of the prosecution and after giving a hostile say have declined and said that nothing was recovered from the possession of the accused person before them. 8. PW-5 Ratan Singh, police constable has specifically said that the samples were given to him by S.P. Office of Police on 18.4.1981 and he deposited the same vide Exhibit 9 on 23.4.1981. He has asserted that it takes 10 to 12 hours in reaching in Jaipur from Pali and he has also narrated that for how many days the samples were kept with him or remained with him is not learnt or known to him, obviously the said samples remained with this police cop from 18.4.1981 to 23.4.1981 i.e. for a period of about one week and there is no evidence authenticating, proper preservation and keeping the samples intact during this unexplained long time. So, it is obvious that the link evidence is drastically breached. 9. So, it is obvious that the link evidence is drastically breached. 9. The case of the prosecution is that 30 grams of contraband was taken from each bag and was further sent for forensic examination, but it is strange that the FSL report which is Exhibit 10 recites that the samples of contraband marked as A/1 and B/1 weighed 38 grams and 39 grams respectively, which indicates tampering and unbelievable situation, it weakens the story of the prosecution. 10. It is stranger as to how a sample of 30 grams gained weight becoming 38 grams and 39 grams and solitarily this aspect is enough to disbelieve the prosecution story, prosecution has not produced any independent witness. 11. Visit and evaluation on the aforesaid evidence indicate that the prosecution has failed to establish its case so this Court is of a considered opinion that learned courts below have committed grave mistake by not appreciating the evidence in correct perspective, so the findings of conviction and sentence are unsustainable, perverse and erroneous. 12. In view of above, this court is of the view that the conviction and sentence passed by the impugned order is liable to be set aside, and the accused persons Arjun Kumar and Jagdish are liable to be acquitted. 13. Resultantly, the appeals No. 147/98 and 148/1998 are allowed and conviction and sentence passed against the revisionists-accused persons Arjun Kumar and Jagdish under Section 4/9 Opium Act is set aside and both the revisionists are acquitted of the charges aforesaid They are already on bail so they do not require to surrender. Both the revisions stand allowed as above.