Rajasthan High Court - Jodhpur
State vs Kailash Chandra on 6 February, 2012
Author: R.S. Chauhan
Bench: R.S. Chauhan
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
State of Rajasthan
Vs.
Sripal
S.B. CRIMINAL LEAVE TO APPEAL NO.340/2009
S.B. Criminal Leave to Appeal
No. 340/2009 filed under
Section 378(iii)&(i) Cr.P.C.
against the judgment dated
18.08.2009 passed by Special
Judge, NDPS Act Cases, Sri
Ganganagar in S.C.No.16/07.
Date of Judgment: 6.2.2012
HON'BLE MR. JUSTICE R.S. CHAUHAN
Mr.Anil Upadhyay,PP The State is aggrieved by the judgment dated 18.8.2009 passed by the Special Judge, NDPS Cases, Sri Ganganagar, whereby the learned Judge has acquitted the accused respondent, Sripal for offences under Sections 8/18 of NDPS Act & Section 29 NDPS Act, 1985 ('the Act' for short).
Briefly, the facts of the case are that on 13.3.2007, Abdul Kayum (P.W.11), received a secret information that Sri Pal is in the business of selling opium. He has just gotten down from a the bus and 2 has started walking towards his house. If he were intercepted, and police would recover opium from his possession. Having received this information, Abdul Kayum (P.W.11), immediately informed his superior officer in accordance with Section 42 of the Act. He formed a police party and left for the destination. From Connaught Place Circle, he picked up two independent witnesses. Subsequently, they reached near the house of Sri Pal. They intercepted him. After giving him the notice under Section 50 of the Act, Sri Pal was searched. The bag that he was carrying, contained a black liquid substance. The said substance was admitted by the accused respondent to be opium. From the bag the Police recovered 800 gms. of opium. Out of this 800 gms. opium, two samples of 50 gms. each were taken out and sealed. Subsequently, a charge-sheet was submitted against Sri Pal for offences under Section 8/18 and 29 of the Act, and against the co-accused, Dhokal Ram, for offence under Section 8/29 of the Act.
In order to buttress its case, the prosecution examined twelve witnesses, and submitted a few documents. Though, the defence did not examine any witness, it did submit a few documents. After going through the oral and documentary 3 evidence, vide judgment dated 18.8.2009 the learned Judge acquitted the accused respondents. Since Dhokal Ram had already expired during the course of the trial, the proceedings had abated against him. Hence, this criminal leave to appeal before this Court only against Sri Pal.
Mr. Anil Upadhyay, the learned Public Prosecutor, has vehemently contended that the learned Judge has failed to appreciate the evidence in proper perspective. The learned Judge has ignored the fact that the prosecution witnesses have clearly proved the recovery of the drug; the FSL report also showed that the substance recovered from the accused respondent was indeed opium.
Heard the learned Public Prosecutor and perused the impugned judgment.
A bare perusal of the impugned judgment clearly reveals that the learned Judge has noticed the fact that the prosecution has failed to prove the nature of the substance recovered from the accused respondents. Although the prosecution had claimed that opium was recovered from the accused respondent, although it had claimed that two samples of 50 gms. each were taken from the substance recovered from the accused respondent, but according 4 to the learned Judge the samples seem to have been tampered with. There is contradictory evidence with regard to the sealing of the samples. According to Balwant Singh (P.W.7), the sample was first put in a plastic bag, and subsequently into a cloth bag, and then sealed. Similarly, according to Subhash (P.W.10), the sample was put into a plastic bag, and then into a cloth bag, and then sealed. The same fact has been narrated by Abdul Kayum (P.W.11), the Investigating Officer. However, according to the FSL Report (Ex.P1-
30) the sample was first kept in plastic bag, subsequently, the said bag was again kept in another plastic bag. Both the plastic bags were subsequently kept in a cloth bag and then sealed. Obviously, the sample received by the FSL does not match the description, as given by the three above-mentioned witnesses. According to the witnesses, the sample was kept in a single plastic bag. However, according to the FSL, the sample was kept in two plastic bags. Hence, the learned Judge was certainly justified in concluding that sample may have been tampered with between its custody with while in police custody. Since there is a distinct possibility that the sample may have been tampered with, the learned Judge was certainly justified in concluding that the prosecution has failed to 5 prove its case beyond a reasonable doubt.
Therefore, this Court does not find any illegality or perversity in the impugned judgment dated 18.8.2009. The criminal leave to appeal is devoid of any merit; it is, hereby, dismissed.
[R.S.CHAUHAN] J arti sr.no.27