1 S.B. Criminal Revision No. 46/1993 (Manohar Ram Vs. State & Ors.) IN THE HIGH COURT OF JUDICATURE FOR RAJSATHAN AT JODHPUR S.B. CRIMINAL REVISION NO. 46/1993 (MANOHAR RAM Vs. STATE & ORS.) Date : 29.07.2010 HON'BLE MR. C.M. TOTLA, J. Mr. Doongar Singh for the petitioner. Mrs. Chandralekha, P.P.. = = = = Petitioner challenges his conviction for the offence of Section 4 read with 9 Opium Act recorded by Judicial Magistrate, Phalodi in Criminal Case No. 53/84 per judgment dated 05.10.90 and affirmed by learned Sessions Judge vide judgment dated 09.02.93 in Criminal Appeal No. 51/91 and petitioner is sentenced to two and half years rigorous imprisonment with fine Rs.100/- in default three months RI. Heard learned counsel for the petitioner and learned Public Prosecutor. Brief facts as averred and disclosed during trial, per prosecution appear to be that S.H.O, Baap on 15.10.83 at about 1:15 PM was informed by Constable Ramu Ram, Chhog Singh that on information that Manohar Ram dealing in opium have come to village so these Constables alongwith two other Constables per direction to search and bring him- while doing so, arriving near house of Bhikha Ram observed Manohar Ram coming on cycle who seeing Constables turned back the cycle and on carrier at rear of cycle was a bag so Manohar Ram was chased who throwing away bag in plants of “Akda” ran away and could not be arrested. SHO PW/7 soon arriving there in presence of PW/3, 4 and others from below a little tree like bush of Akda found a 'katta' (cement bag) – in which in a white polythene was a black substance which on appearance and taste found opium. The substance weighed 7 kg 100 gm from of which sample of 30 gm separately taken and rest substance keeping in the same container sealed preparing memo and site plan. ON the basis of this recovery, FIR No. 46/83 Ex.P/6 registered. SHO in course of investigation on same day 15.10.83 seized the cycle found near house of Ratan chand on carrier of which was a pair of shoes, 2 S.B. Criminal Revision No. 46/1993 (Manohar Ram Vs. State & Ors.) preparing memo Ex.P/5 - cycle merchant from whom cycle taken on hire gave register of entries Ex.P/7 -appellant arrested – keeping articles in malkhana sample on 20.10.83 forwarded for delivering at laboratory on 02.11.83 obtaining receipt Ex.P/9, FSL Report subsequently received Ex.P/10. Among the prosecution evidence examined Nathu Ram PW/1, Ajit Singh PW/2 and Ramu Ram PW/9 are the constables who state of finding etc of petitioner as above. PW/3 and PW/4 are witnesses of recovery of article the bag – Suresh PW/8 cycle shopkeeper and PW/4 also are declared hostile. Head constable PW/6 and constable PW/5 relate to safe keeping of articles in malkhana and delivering to laboratory whereas PW/6 SHO who informed by constables reaching there seized article and investigated further. According to accused, witnesses telling lie and nothing was recovered from him. In defence is examined Narayan Dw/1. Learned Magistrate arriving at conclusion that accused Manohar Ram runningly on in view of Constables did threw the bag containing this substance which seized and as above found containing opium. Further that cycle taken on hire by accused. Learned Magistrate also observed that it was only accused who running away throwing the bag and the cycle was in possession of accused found with shoes and seized as above. Learned counsel contents that recovery of bag may have been from below plants or anywhere else but the petitioner has no relation whatsoever with it – contends that relation of petitioner with this bag is not proved and it cannot be safely inferred that it was only the petitioner who possessing the bag did threw it away. Argued that even presence of petitioner anywhere around that place cannot be inferred. Vehemently submits that (i) Constables could not have seen and identified, atleast very definitely person from such a long distance particularly when concerned was riding on cycle (ii) witnesses of recovery do not support – in any way do not incriminate accused (iii) if prior information was, as stated, then no reason to direct only to constables for search and if so direction was, it was particularly directing arrest (iv) shoes and cycle not proved to be of petitioner - nowhere connected to accused and there is no iota of evidence to show that this was in possession of accused – taken on hire or otherwise possessed by petitioner not proved – no necessity or 3 S.B. Criminal Revision No. 46/1993 (Manohar Ram Vs. State & Ors.) occasion to leave shoes with cycle that too fastened in spring of carrier (v) no specimen seal used – is proved to have been prepared on the same day and no evidence for sending same to laboratory. Argued that no worth evidence to show any connection of seized substance to accused. In support of contention cited is 1992 Crl.L.R. Raj. 536 reported for necessity of seal impression. Learned Public Prosecutor countering arguments states that Constables knowing petitioner very well did definitely identify him who not stopping running threw away the bag and could not be apprehended. Submits that witnesses though policemen have no reason to depose anything untrue against the petitioner and that cycle shopkeeper is declared hostile but such entries appear in register Ex.P/6. Considered arguments carefully gone through the record. On facts concurrent findings of the courts below are. Agreeing with the inferences of learned Sessions Judge has affirmed conviction. In revision normally though the factual aspects are not to be probed very deeply but prima facie evidence produced can be seen wherever necessary. As above, basically prosecution case is that petitioner going on cycle having seen Constables ran away and the Constables identifying him did chase him who while running away did threw the bag which was on his cycle and threw it below a little tree like big plant of Akda. SHO PW/6 state that he having receiving information of and for Manohar Ram that he with substance has come to village so and then for searching him sent constables Ramu Ram and Chhoga with a direction to present this man (at P.S) found to be with opium and thus, Rama ram coming had informed him that while going at Fata, Manohar ram found who ran away throwing as above. Ramu Ram PW/9 say that when sHO receiving information as above directed them they proceeded and saw from a distance of about 100 yds accused coming on cycle with bag on carrier who when apprehended by them while running away at about distance of 400 yds stopped his cycle, alighted and making cycle stand with tree dropped bag there which place at about 20-25 yds from main road. PW/9 state that they being on foot taking a cycle from person passing through chased him for about an hour then cycle punctured. Per PW/9 they coming to village Jetasar and back to town Bap tried to get accused about three hours while 4 S.B. Criminal Revision No. 46/1993 (Manohar Ram Vs. State & Ors.) constable Chhoga Ram remained where bag was. Other Constable PW/1 Nathu Ram depose that near house of Bhikha Ram at Fata Bap , Manohar Ram coming on cycle seen by them who observing them turning back and going through near house of Ratan chand below tree placed the bag and ran away which bag when picked weight about 7-8 kg they so chased but could not get accused so Ramu Ram returned to Police station to inform SHO. PW/1 also admit that he after a distance could not observe the person and they were on foot still tried to and running from near pond. According to constable Choga Ram PW/2 he knew Manohar Ram well since prior and looking for him observed him coming at a distance of 100 stpes who looking them turned back, so they chased him who alighting cycle threw away rearly placed polythene bag below a tree. PW/2 state that he remained at that place and other followed accused who could not be arrested so they informed SHO at PS. PW/1 also say that he already knew accused. PW/2 admit that they were on foot and he could not see after a little distance. PW/1, PW/2 admit of they knowing cousin of petitioner Harish Chandra and also Arjun Singh. Memo Ex.P/1 or any other do not mention of presence of such constable or any other person named Harish chandra and whereas PW/1, PW/1 admit of knowing well Harish Chandra who after came there with Harish chandra. According to this version, certain information was regarding accused and constables specifically only to arrest him or atleast to bring to P.s. Given above, very contrary and not only varying but on material points opposite to each other is evidence of PW/1, 2 & 9. The person allegedly running away was on cycle whereas constables were on foot so becomes doubtful to have seen as to identify definitely. Still while running on cycle at a distance of 400 yds or like petitioner stopped and standing the cycle then dropping the bag is totally non-believable. Being on cycle had no reason or necessity to do so. Further per prosecution, cycle was found at near house with pair of shoes fastened to spring of carrier. If any person running away and succeeding then leaving shoes on cycle in such a way too is not worthy acceptance. If shoes were not on carrier then throwing bag, shoes were not to be abandoned and if not on carrier already then person while cycling no reason to leave it. For shoes no evidence showing this to be of accused is. Any how for the above reasons and on above evidence, cannot reasonably safely be believed that it was only accused 5 S.B. Criminal Revision No. 46/1993 (Manohar Ram Vs. State & Ors.) who running away dropped the bag. Above being the position, finding and recovery of bag from below the tree is of no consequence in relation to accused petitioner. Since the accused is not proved to have thrown the bag and also his possession not proved and on this count is to be acquitted. Said cycle shopkeeper PW/8 or any other witness do not speak of this very cycle being in possession of petitioner. SHO PW/7 depose that cycle of firm M/s Mangi lal Ghanshyam from where on rent the cycle was taken by Manohar Ram and he obtained copy of register entries Ex.P/7 which shows that cycle given to Manohar Ram on 13.10.84 Ex.P/7 is not proved. It is described to be copy. Through possession or any after situation link with this cycle of petitioner do not appear. Other points raised need not be gone into. Therefore, as observed above, substance is not proved to have been in possession of the petitioner so he deserves acquittal of the offences charges. On the findings as above, revision is allowed. The conviction and sentence passed by Judicial Magistrate, Phalodi in Criminal Case No. 53/84 per judgment dated 05.10.90 affirmed by learned Sessions Judge vide judgment dated 09.02.93 in Criminal Appeal No. 51/91 is set aside. (C.M. TOTLA), J. bj