1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT State of Rajasthan vs. Mohan S.B. Criminal Appeal No.363/1988 u/s 378 (i) Cr.P.C. against the judgment dated 25.05.88 passed by the Munsif and Judicial Magistrate 1st Class, Nimbahera, in Criminal Case No.715/81. Date of Judgment : 28th April, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.JPS Choudhary , Public Prosecutor, for the State. None present on behalf of the accused respondent. BY THE COURT: This criminal appeal has been preferred by the State against the judgment and order dated 25th of May, 1988 passed by the Munsif -cum- Judicial 2 Magistrate, Nimbahera whereby he has acquitted the accused respondent Mohan in the offence under section 4/9 of Opium Act 1878. As per the prosecution case, the accused respondent Mohan s/o Mangilal Gowal is alleged to have been found in possession of 2 kgs. of opium on 12th of April, 1981 when he was traveling in bus RRM- 9770 going from Ratlam to Udaipur. It is alleged that this bus was checked at the sales tax check post barrier , Nimbahera by PW/1 Suraj Prasad Sharma , Sub-Inspector of Narcotics Department. At the time of checking he was accompanied by police officers. None has appeared on behalf of the accused respondent Mohan. Hence, the arguments of Mr.JPS Choudhary , learned Public Prosecutor, appearing for the State were heard and the impugned judgment of the lower court, as also the prosecution evidence and 3 related documents, were perused. Mr.Choudhary has contended that the recovery of 2 Kgs. of opium is very well proved from the statements of PW/2 Surendra Prasad Sharma, PW/3 Dwarka Lal, PW/4 Dilip Singh, and PW/5 Bhanwar Singh. He has further contended that there is no contradiction in their statements and as such there does not appear to be a reason to disbelieve their testimony . Mr.Choudahry has further submitted that the finding of acquittal of the lower court, is totally perverse and arbitrary and it is not based on any sound reasoning. Hence, the judgment of the lower court deserves to be set aside. From the perusal of impugned judgment of the lower court, it is found that the lower court has not relied upon the FSL report Ex.P/7 on account of the reason that the forwarding letter Ex.P/10 sent by the Superintendent of Police, Chittograrh was not bearing 4 any specimen seal. The report Ex.P/7, also does not contain mention of the specimen seal, vide which the sample was being sent for chemical examination to the Laboratory. Hence, in view of the judgments reported in Cri.L.R.(Raj.) 1986 185 and Cri.L.R. 1977 (Raj.) 124, the lower court had not relied the FSL report Ex.P/7, as it was not proved that the sample which is alleged to have been taken on the spot from the recovered opium, remained in-tact through out , till it reached in the Laboratory. The lower court has also inferred that since the Report Ex.P/7 could not be relied on, it could not be said that the material which was recovered from the possession of the accused, is only opium. The second ground of acquittal, as enumerated in the judgment by the lower court is that the witnesses who came in contact with the sample of opium from time to time, have not been examined by the prosecution. Hence, it could not be held that the sample remained in-tact. The lower court has also 5 observed that PW/2 Surendra Prasad Sharma happened to be a sub-inspector of Narcotics Department. He checked the post at 12.00 in the noon, but has lodged the first information report with the police after a delay of 6 hours, of which no reasonable and satisfactory explanation has been given by the prosecution. The perusal of FIR Ex.P/6 reveals that the distance from the place of occurrence to the police Station , Nimbahera is only ½ Km. and this distance can be covered within a period of 15-20 minutes. The lower court has held that the entire proceedings of recovery etc. must have been finished latest by 03.00 PM but the report has been lodged at 06.00 PM and this delay has remained unexplained, which is found to be fatal to the prosecution. Having scanned the prosecution evidence and the impugned judgment of the lower court, it is found that the reason on which the judgment of the lower court is based, are found to be just and proper. It is not that 6 the lower court has acquitted the accused respondent in an arbitrary manner. Apart from the grounds of acquittal discussed by the lower court, I find that the prosecution has examined only 2 independent witnesses , namely PW/6 Pratap Singh and PW/7 Daya Shanker, who were driver and conductor of the said bus RRM-9770 respectively and both these independent witnesses, have not supported the case of the prosecution and as such they have been declared hostile. In view of the aforesaid infirmities in the prosecution case, it is not safe to rely upon the testimony of PW/1 Lalu Ram and PW/2 Surendra Prasad Sharma, who are the complainant and the employees of Narcotics Department. Though it can be said that both the witnesses are not found to have any enmity with the accused respondent, but at the same time their testimony is not corroborated by any independent witness. The prosecution has not also examined those witnesses, in whose hands the sample 7 kept on transferring from time to time. Hence, in my view, not only that the prosecution case suffers from numerous infirmities, but it does not stand corroborated by the independent evidence too. The judgment of the lower court is found to be just and proper, with which I fully agree and it calls for no interference. In view of above, the criminal appeal filed by the State against the judgment of acquittal of accused respondent, dated 25.05.88, passed by the Munsif and Judicial Magistrate , Nimbahera is dismissed. (MAHESH BHAGWATI), J. l.george