1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT The State of Rajasthan vs. Rugh Singh S.B. Criminal Appeal No.444/1988 u/s 378 (i) Cr.P.C. against the order dated 27.07.88 passed by the Addl. District & Sessions Judge, Barmer, in Sessions Case No.31/1988. Date of Judgment : 21st April, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH CHANDRA BHAGWATI Mr.JPS Choudhary , Public Prosecutor. Mr.Doongar Singh for the respondent. BY THE COURT: This criminal appeal is directed against the judgment dated 27th of July 1988 passed by the learned Addl.District & Sessions Judge, Barmer 2 whereby he has acquitted the accused respondent of the offence under section 18 of the NDPS Act 1955 (hereinafter referred to as 'the Act') and the offence under Section 25 (B) (A) of Arms Act. The nub of the prosecution story is that on 23rd of June 1987, Gopal Singh SHO, Police Station Girab, accompanied by the police staff, reached on information at the Dhani of accused Rugh Singh, early in the morning at 07.00 AM and on search he was found in possession of 30 gms. of opium which was lying in a box. It is also alleged that during search, 16 live cartridges were also found inside the house. Having registered the criminal case, police commenced investigation and after its completion filed a charge sheet in the court. Heard Mr.JPS Choudhary, Public Prosecutor, appearing for the State and the learned counsel Mr.Doongar Singh, appearing on behalf of the accused 3 respondent. The learned Public Prosecutor Mr.Choudhary has contended that the accused Rugh Singh was in conscious possession of the opium which was lying in his house. He has contended that the lower court has erred in holding that the said Dhani was in the joint possession of accused Rugh Singh and his brothers. If the statements of PW/3 Veer Singh, PW/4 Kalu Khan, PW/5 Rajendra Singh, PW/8 Kishan Singh and PW/9 Bhaboot Singh are believed by the court then the offence under section 18 of 'the Act' , is found to be proved beyond reasonable doubt. There is ample evidence on record with regard to the recovery of 30 gms. Opium from his possession. Per contra, Mr.Doongar Singh, learned counsel for the respondent, has vehemently argued that there is not even a shred of evidence on record against the accused. He has submitted that both the independent motbir witnesses PW/1 Tan Singh and PW/2 Sagat 4 Singh, have not supported the prosecution story and they have been declared hostile. PW/7 Udaram was Patwari of village Badena at the time of occurrence and he is said to be the important witness of the prosecution, upon whose testimony the whole prosecution case rests. Mr.Singh has contended that PW/7 Uda Ram has, in an unequivocal term, submitted that the said Dhani from where the opium is alleged to have ben recovered bears Khasra No.28 and is situated in village Baleba, which is in the joint possession of Rugh Singh, Bheem Singh and Manak Singh ss/o Kistoor Singh. He has further stated that this 'Dhani' is also built up in this Khasra No.28. Thus, PW/7 Udaram, village Patwari, has also not supported the prosecution story. Apart, the sample of 30gms of opium which was sent for chemical examination to Forensic Science Laboratory, the residual part thereof, has not been returned to the Court and the same has not been exhibited during evidence. Since the recovery is not found to be proved from the conscious 5 possession of the respondent Rugh Singh, he cannot be convicted in the aforesaid offence and the judgment of the lower court is perfectly just and legal. Having heard the learned Public Prosecutor ,as also the learned counsel for the respondent, and considered the submissions as also perused the prosecution evidence available on record, it is found that none of the independent witnesses, has supported the prosecution case. Even the main witness of the prosecution PW/7 Uda Ram, Patwari, has also not supported the prosecution story and as per his statement the place from where the opium is alleged to have been recovered, is in the joint possession of Rugh Singh , Bheem Singh and Manak Singh, who are sons of Shri Kistoor Singh. The learned lower court has categorically analysed the evidence of prosecution witnesses. The lower court has also observed that the accused respondent Rugh Singh has been shown to be the resident of Gordia and he himself has also 6 revealed before the Court, during the examination under section 313 Cr.P.C. that he belonged to village Gordia, whereas the opium is alleged to have been recovered from the Dhani situated in Baleba, which is also found to be in the joint possession of all three brothers, including the accused Rugh Singh. From the evidence available on record. It is not at all proved that the said opium was recovered from the conscious possession of the accused respondent Rugh Singh alone. The judgment of the lower court is perfectly just and proper and in conformity of the statements of the prosecution witnesses with which I fully concur. I do not find any infirmity or perversity in the judgment of the lower court and to my firm view, the judgment of the lower court calls for no interference. In view of the above, the criminal appeal filed by the State of Rajasthan, against the judgment of the 7 learned Addl.District & Sessions Judge, Barmer is dismissed. (MAHESH CHANDRA BHAGWATI), J. l.george