-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Surja Ram Vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.985/2006 against the judgment dt.13.11.2006 passed by the Special Judge, NDPS Cases, Jodhpur, in Sessions Case No.6/2006. Date of Judgment: July 14, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Mahesh Boda, for the appellant. Mr.Vishnu Kachhwaha, Public Prosecutor. BY THE COURT : 1. This is an appeal against the judgment of the learned Special Judge, NDPS Cases, Jodhpur dated 13.11.2006, whereby he convicted accused appellant Surja Ram u/s.8/18 of the Narcotic Drugs & Psychotropic Substances Act, 1985, hereinafter referred-to as “the Act” and sentenced him to 10 years' R.I. and a fine of Rs.one lac and in default, to further undergo one year's R.I. -2- 2. Facts leading to this appeal are that the Dy.Superintendent of Police Guman Singh received a secret information on 9.8.2005 at 6.15 AM that one Surja Ram Bishnoi of Village Joliyali is indulged in the sale of opium milk at his tube well and some opium milk for sale is lying in the room of his tube well. He recorded the information at Police Station, Osian and went at the spot alongwith S.H.O. and constables in the Govt. vehicle at 8 A.M. He also called the motbirs in the way and a person viz; Surja Ram was found standing on the tube well. He was informed about the search, who consented for the same. Thereafter, he took out one key from his right pocket of the `Payjama' and opened the room, from where a yellow colour plastic bag was found in which a black colour substance was found, which was on being tasted found to be opium milk for which accused was having no valid licence. On being weighed, the same was found to be 3.250 kgs. out of which, two samples of 30 gms. each were taken on the spot and sealed. The remaining opium alongwith sample and controlled opium milk with lock and key were taken in the police custody and they were deposited in the Malkhana. The case was registered against the accused. After investigation, the challan was filed u/s.8/18 of the Act against the accused and he was charged accordingly, to which he pleaded not guilty. The prosecution examined 12 witnesses. The statement of the accused was recorded u/s.313 -3- CrPC. He produced four witnesses in the defence. After hearing the arguments, the learned trial Judge convicted the accused appellant as above. 3. While assailing the judgment of the trial Court, learned counsel for the appellant has submitted that in this case, the accused was not in conscious possession of the field from where the recovery has been made. Per contra, the field was belonging in the name of his brother's wife and the Patwari has specifically stated in his cross examination that accused Surja Ram did not cultivate the field in the preceding two years. He has also submitted that there was no entry in the Malkhana register about the lock and key and despite that, the learned trial Court has appreciated the evidence in this regard and convicted the accused as above. 4. On the contrary, learned Public Prosecutor has supported the judgment of the trial Court. 5. In this case, the principal officer, who made the recovery is Dy.S.P. Guman Singh, who being a Gazetted Officer, was authorized to make a search under Section 41 of the Act. He has been examined as PW 3. Though he has proved recovery memo Ex.P.11 in which it is stated that opium milk was recovered from -4- the room of the tubewell of Surja Ram where he was standing and the lock and key were marked as `D' but from the Malkhana register Ex.P.18, it appears that there is no entry of the deposit of the lock and key. Malkhana Incharge Sahi Ram, PW 5 has stated that the entries in the Malkhana register Ex.P.18 were made by him and he also made entry of the lock and key but this is absent in the Malkhana register, Ex.P.18. When he was cross examined on this aspect, he admitted that there was no entry to this effect in the Malkhana register and stated at his own that by mistake, the entry to this effect could not be made. Thus, when the recovery of lock and key has been made and they have been produced in the court as `Article-4', why entry was not made in the Malkhana register, creates doubt as to whether the lock and key were recovered by the police or not. On this count, it can safely be said that the contention of the learned counsel about open room without lock and key existing on the tubewell and the story of the prosecution with regard to producing the key by the accused on the spot from his right hand pocket of the `Payjama', stands falsified. When the room was open as revealed from the photographs Ex.D.6 to 9 proved by Bhagwan Singh and Moola Ram, DW 2 and DW 3 respectively, it appears that this was used for electric meter fitting and on such an open room, the recovery becomes doubtful. -5- 6. Coming to the possession of the accused over the field as per the prosecution witnesses, especially the Dy.S.P. Guman Singh, PW 3, accused was standing on the tubewell, which was belonging to him but in this regard, the Patwari, Jabbar Chand, PW 8, has clearly stated that Khasra No.103 and 103/1 are entered in the name of Smt.Somari Devi w/o Bhakhar Ram as per the trace map Ex.P.25 and Jamabandi Ex.P.26. In the cross examination, he has stated that he has not seen in last two years accused Surja Ram doing cultivation over this field. When the Patwari, who makes entry of the cultivation and about the possession on the field of a person as a khatedar, tenant or sub tenant etc., has denied the possession of the accused over the field, the statement of Dy.S.P. Guman Singh, PW 3 and other police personnels that the field belonged to accused Surja Ram is also wrong. When the question to this effect was asked to Dy.S.P., he said that he did not call Gram Sewak, Patwari, Sarpanch or other neighbourers on the spot. On the contrary, the accused appellant has stated in his statement u/s.313 CrPC and also Manohar Singh, DW 4 has proved that the accused is residing at vilage Puniya Ki Piao, Joliyali, vide his family ration card Ex.D.10 with his five family members and the same entry has been made in the identity card of the Election Commission, Ex.D.11. Had the field belonged to the accused, the prosecution should have brought the relevant documents on record or -6- atleast, they should have called the person, in whose name, the field was standing in the revenue record. PW 1 Ghewar Singh and PW 2 Padam Singh are the police personnels, who went with the Dy.S.P. Guman Singh, PW 3 and their statements are also similar to him with regard to possession and documents. Lalu Ram PW 4 and Mohan Ram PW 6 are the hostile witnesses. Arjun, PW 7 is also a hostile witness and has specifically stated that Surja Ram is not looking after the tubewell of his brother Bhakhar Ram. 7. In this way, the prosecution has not been able to prove the conscious possession of the accused appellant over the field and also recovery of lock and key, whereby it can be gathered that the accused opened the room by taking out the key from his right hand pocket of `Payjama'. On the contrary, it has been proved that the room was open and was being used for electric meter fitting. 8. In view of the above discussion, the finding of guilt arrived at by the trial Court against the accused appellant Surja Ram cannot be sustained. 9. Consequently, this appeal is allowed. While setting aside the conviction of the accused appellant Surja Ram for the offence -7- u/s.8/18 of the Act recorded by the Special Judge, NDPS Cases, Jodhpur vide his judgment dt.13.11.2006, he is acquitted of the charge levelled against him. He is in jail, he shall be released forthwith, if not required in any other case. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS