1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Abbas S.B.Cr. Appeal No.720 of 1999 Under Section 378(i) (iii) Cr.P.C. against the order dated 7.2.1998 passed by Shri Jagpal Singh, Special Judge, Sikar in Special Case No.138/97 by which the accused respondent has been acquitted for the offence u/s 8/18, 8/20 and 8/21 of the NDPS Act. DATE OF JUDGMENT ::: November 21, 2008 P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Shyam Arya, P.P. for the State. Ms. Milar Sharma for Mr. Santosh Kaushik for the accused respondent. BY THE COURT Challenge in this appeal is to the judgment dated 7th February, 1998 rendered by Special Judge Sikar whereby the accused respondent Abbas has been acquitted in the offence under Section 8/18, 8/20 and 8/21 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “Act, 1985”). 2. Facts giving rise to the prosecution case succinctly runs as under: That on 3rd September, 1997 PW/6 Ram Gopal Bisnoi the then Dy.S.P. Fatehpur accompanied by police personnel reached at the house of the accused respondent Abbas on an information received from an informer and took the search of the house in the presence of 2 the independent witnesses Shri Jai Chand and Shri Chand. Shri Bisnoi found a box lying in the room which was opened and on search it was noticed that four small plastic bags and a small pouch were lying therein which contained separately opium, Charas, brown sugar, heroin and chandu. Apart these packets, three match boxes and a pipe for smoking cigarette, coins and pannia were also found. On weighing, opium was found to be 205 grams, Charas 320 grams, brown sugar 125 grams, heroin 8 grams and Chandu (powder of opium) 15 grams in weight. Shri Bisnoi thereafter took samples from all these recovered articles separately and sealed them as per the requirement of law. The accused respondent Abbas who was present at the time of search of his house was found having no license or permit to keep and possess them in his house. The search and seizure officer Shri Bisnoi prepared a recovery memo Ex.P/1 on the spot where upon the police registered FIR Ex.P/16 and commenced investigation. 3. The investigating Officer recorded the statements of the witnesses under Section 161 of Cr.P.C, sent the samples for chemical examination to Forensic Science Laboratory, Jaipur, arrested the accused Abbas vide Ex.P/9, prepared necessary memos and after completion of investigation filed challan against him. 4. A charge in the offences under Sections 8/18, 8/20 and 8/21 of Act, 1985 was framed and read over to the accused who pleaded not guilty 3 and claimed trial. The prosecution has examined seven witnesses in all to prove its case. In his explanation under Section 313 of Cr.P.C the accused claimed innocence and submitted that he was falsely implicated in this case. On completion of trial, the accused was not found guilty of the charges and acquitted as indicated hereinabove. 4. Heard the submissions advanced by the learned Public Prosecutor appearing for the State, learned counsel for the accused respondent and scanned the relevant material on record. 5. The learned Public Prosecutor has contended that the trial court has not properly appreciated the evidence of prosecution witnesses and merely on technical ground acquitted the accused. The learned trial Court also did not consider the evidence of prosecution witnesses and the search and recovery memo Ex.P/1 and erred in passing a judgment of acquittal which is totally contrary to law and the facts available on record. There is no reason to disbelieve the testimony of the police witnesses and their evidence cannot be abandoned merely for the reason that all the witnesses examined by the prosecution belonged to police department. There is ample material on record against the accused, hence, the judgment of acquittal may be set aside and the accused respondent may be convicted in the alleged offences accordingly. 6. Per contra, the learned counsel for the accused respondent has submitted that the judgment of the learned trial Court is just and well reasoned. It does not suffer from any infirmity and there is no material available which may lead the Court to intervene in the finding of acquittal of the accused. Therefore, the appeal may be dismissed. 4 7. Having reflected over the submissions advanced at the bar and scanned the relevant material, it is noticed that the prosecution case wholly rests on the evidence of the police officers. Albeit, the search of the house of the accused respondent was taken in the presence of two independent witnesses Shri Jai Chand and Shri Chand but alarmingly neither of these two witnesses has been examined by the prosecution. Relying upon the judgment of Nathia Vs. State of Raj. (1991 RLR, 15) Shri Sher Singh Vs. State of Raj. (Criminal Law Reporter 1995, 94) Balram Vs. State of Raj. (Crime VIII 1993 (2) 1130) and Satpal Vs. State of Raj. (Cr.Law Reporter 1996 (Raj.) 228) the learned trial court observed that a seal by which the samples were duly sealed, an impression whereof was not sent to FSL along with the samples sent for chemical examination. The learned trial Court further observed that in view of this circumstance, it was not proved that the seals affixed on the samples remained intact from the place where they were taken to the place where they were deposited. Further while relying upon the judgment of Satpal Vs. State of Raj. 1996 Criminal Law Reporter, 228 the learned trial Court observed that difference in the weight of samples of opium, Charas, brown sugar, heroin which was taken on the spot and in the weight of those samples which reached in FSL for chemical examination was found, hence, it could not be ascertained as to the samples which were deposited in FSL, Jaipur for chemical examination were the same which were duly sealed by the search and seizure officer at the site. 8. Having pondered over the entire prosecution evidence including the relevant documents, I do not find any reason to take a different view to that of the view taken by the learned trial Court and I also do not find any ground to disturb the finding of acquittal arrived 5 at by the trial Court. The learned trial court has critically examined and properly appreciated the prosecution evidence. The impugned judgment does not suffer from any infirmity and the same is found to be cogent and well meritted, I am in unison with the finding of the acquittal arrived at by the learned trial Court and to my firm view, the impugned judgment calls for no intervention. 9. For these reasons, the State appeal being bereft of merits stands dismissed. The accused respondent is on bail and his bail bonds are ordered to be discharged. (MAHESH BHAGWATI)J. PCG