1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Wazid Ali S.B.CR. APPEAL NO. 437/1994 . DATE OF JUDGMENT :::: 18th July, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. B.K.Sharma, PP for the State. Mr. S.S.Sunda for the respondent. BY THE COURT: Challenge in this appeal is to the judgment dated 18h April, 1994 whereby the Special Judge N.D.P.s. Cases (Additional Sessions Judge, No.2, Kota ) has acquitted the accused respondent Wazid Ali in the offence under Section 8 read with Section 21 of Narrcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act 1985'). 2. The accused Wazid Ali is alleged to have been found in possession of 76 grams smack on 18th August, 1992 at 4.15 PM near a bridge under construction situated at Mala Road, Kota. The Court levelled this charge against the accused who did not plead guilty and claimed trial. 2 3. The prosecution has examined in all 7 witnesses to prove its case. The accused claimed innocence in his statement recorded under Section 313 of Cr.P.C. The Court on completion of trial did not find the accused guilty 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 with their assistance scanned the material available on record. 5. Having perused the impugned judgment of the trial Court and ruminated the entire prosecution evidence, it is found that the learned trial Court has based the acquittal of the respondent Wazid Ali on the ground that the article recovered from his possession has not found to be proved smack. 6. PW-1 Murlidhar, the then Malkhana Incharge of Police Station, Bhimganjmandi, Kota has stated that Shri Durga Narayan, S.H.O., deposited two sealed packets in the Malkhana of which he made an entry in the Malkhana register accordingly. He has further stated that on 30th August, 1992 he entrusted one sealed sample packet bearing mark 'B' to PW-3 Shri Anokhe Singh, Constable to deposit the same in Forensic Science Laboratory. On 31st August, 1992 Shri 3 Anokhe Singh deposited the said sample in F.S.L and brought it receipts Ex.P/4. This very sample packet came back to Malkhana on 14th September, 1992 through S.P. Kota which he deposited in Malkhana accordingly. Thereafter again on 25th September, 1992 he entrusted this sample along with some other papers to Shri Sazid Ali Constable who deposited the same in F.S.L. Jaipur and brought its receipt Ex.P/2. On the contrary PW-3 Shri Anokhe Singh Constable has deposed in the cross examination that the sample was entrusted to him on 29th August, 1992. On the suggestion of learned counsel for the accused, this witness firmly said that it was wrong that he had not received the sample on 29th August, 1992. Thus there appears to be a tangible contradiction in the statement of PW-1 Murlidhar and PW-3 Anokhe Singh with regard to the date of entrustment of sample. PW-1 Murlidhar states that he entrusted the sample to Anokhe Singh on 30th August, 1992 whereas Anokhe Singh states that he received the sample on 29th August, 1992. PW-8 Sazid Ali has of course supported the evidence of PW-1 Murlidhar that he obtained the sample on 25th September, 1992 and deposited the same in FSL Jaipur on 26th September, 1992. This witness has explained in the cross examination that specimen seals were on one paper only. The same packet also was bearing only three seals and these seals were similar. 4 7. The statements given by PW-1 Murlidhar does not reveal as to who obtained the sample on 14th September, 1992 which came back from FSL Jaipur through S.P.Kota. It is also not clear as to who made the entry in the Malkhana register. Neither this entry is found to have been made by PW-1 Murlidhar nor by S.H.O. Bhimganjmandi. The prosecution has not examined that person who made this entry in Malkhana register. There is no mention of this fact in Malkhana Register that the sample was received intact. The prosecution has not established this fact that the sealed sample remained through-out intact as the sample in the instant case has been sent by Police Station Bhimganjmandi twice to FSL Jaipur for chemical analysis firstly on 30.8.1992 and the second time on 25.9.1992. 8. In the case of State of Rajasthan Vs. Bher Singh (2003 Cr.L.R. (SC)9) the Hon'ble Apex Court has held that “We have perused the evidence of PW 7 who seized the opium in question, as also the evidence of PW 9 who was the officer-in- charge of the Malkhana and from their evidence, we find that it is not possible to hold that the seal allegedly put by PW 7 while taking the sample opium remained intact right through the time it reached the Forensic Science Laboratory. This being a mandatory requirement to establish the fact that the seized goods was in fact is a prohibited drug under the NDPS Act, we agree with the High Court on facts of this case that the prosecution has failed to establish this 5 part of its case hence, we find no reason to interfere in this appeal. Therefore, we dismiss the same.” 9. In the case of State of Rajasthan Vs. Gurmail Singh (2005 Cr.L.R (SC) 328) the Hon'ble Supreme Court has held that since the seals on samples remained intact was not satisfactorily proved and that the sealed articles were kept intact in Malkhana, the conviction of the accused was not upheld. 10. In the instant case also the prosecution has failed to establish that the sealed sample remained intact through out from 30th August, 1992 to 26th September, 1992. This sample was sent twice to FSL Jaipur but the prosecution has failed to establish that when the sample was received back on 14th September, 1992 through S.P.Kota, it was intact nor any note to this effect was drawn in Malkhana Register that the seals of the pack have remained intact. The duty has been cast upon the prosecution to prove the case against the accused beyond reasonable doubt. But the prosecution seems to have failed to discharge the same. The impugned judgment of the trial Court is cogent and well merited. The trial Court has examined the prosecution evidence in detail and made a proper appreciation thereof. The impugned judgment does not suffer from any infirmity. The finding of acquittal arrived at 6 by the learned trial Court is just and proper with which I fully concur and thus the impugned judgment calls for no intervention. 11. For these reasons, the State Appeal being devoid of merit, stands dismissed and the impugned judgment of acquittal is maintained (MAHESH BHAGWATI)J. PCG