1 S.B. Criminal Appeal No. 376/89 (State Vs. Bhanwar Singh) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State Vs. Bhanwar Singh S.B. CRIMINAL APPEAL NO. 376/1989 Against the judgment dt. 29.05.89 passed by Munsiff and Judicial Magistrate, Ist Class, Pratapgarh in Sessions Case No. 318/88. Date of Order : 24th July, 2009 PRESENT HON'BLE MR. JUSTICE C.M. TOTLA Smt. Chandralekha, P.P. Mr. Sanjay Mathur for the appellant. Mr. Mahaveer Pareek ] BY THE COURT: Appeal challenges respondent's acquittal for the offence of Section 4/9 of Opium Act recorded vide judgment dated 29.5.89 in Criminal Case No. 318/88 before the Judicial Magistrate, Pratapgarh. According to prosecution, on 23.11.84 when Excise Inspector PW/4 alongwith Enforcement officer PW/5 and other personnels of Excise department working on the basis of certain information were at road intersection near village Badi Sakhtali. They observed at around 11 AM that from towards Badi Sakhtali a person was coming on cycle and on handle of cycle was a bag having some suspicious article. So the person was asked to stop who leaving cycle and bag ran away who while apprehended at some distance fell down on surface of road sustaining little injury at leg thumb he interrogated before independent witnesses and on search of bag at handle of cycle in it found opium which weighed 2 S.B. Criminal Appeal No. 376/89 (State Vs. Bhanwar Singh) 5 kg from which two samples of 50 gm each separately sealed and remaining substance separately sealed – over mudguard and chain cover of cycle was described (paint written) Trivedi Cycle service, Sujapur that also also seized. Memo of seizure is Ex.P/2 and arrest of accused Ex.P/1. Registering report No. 47/84 at Excise department, Pratapgarh on same day then at 11 PM - FIR Ex.P/8 narrating incident lodged by PW/2 at P.s. Salumgarh where FIR Ex.P/9 was registered. Delivering sample packet intactly at laboratory and after usual investigations, charge-sheet submitted. As per FSL report, the substance was found to be opium having 6.86% morphine. Appellant when charged of conscious possession as above mentioned, denied the same. Among the prosecution witnesses examined, PW/4 is the Inspector and PW/5 Enforcement Officer with him PW/1, PW/2, PW/3 are said to be independent witnesses who all are declared hostile, whereas, PW/6, 7 and 8 police personnels pertain to delivering sample to laboratory. Appellant explained that he with his brother Ram Singh were coming on cycles and on other cycle also was Pratap Singh - they and other two persons all were stopped by police persons who telling and making those two persons ran away falsely implicating him taken him to Pratapgarh and procured his signatures on papers. In defence are examined brother Ram Singh, an other witness Pratap Singh DW/2, Devi Singh DW/3. Learned Magistrate inferred the case to be doubtful because of the reasons (i) no evidence regarding who procured cycle from shop name of which was scribed on cycle (ii) nothing to show cycle with respondent (iii) hardly can be that leaving cycle ran away – if this be so, ought not to 3 S.B. Criminal Appeal No. 376/89 (State Vs. Bhanwar Singh) have run on road but towards and on agricultural fields there on both sides (iv) no reason of PW/4 and PW/5 being there (v) 5-6 persons of the department also were but none of them in evidence (vi) going to Pratapgarh a distant place and then belatedly lodging report at P.S (vii) no independent witness supports (viii) substantial contradictions regarding two sealed samples allegedly kept in different manner wheras sample taken was only one. Elaborating reasons, giving benefit of doubt, learned trial court acquitted the accused respondent of the charges levelled against him. Learned Public Prosecutor contended that Excise Inspector was working on information – seizure from possession of accused - independent witnesses though declared hostile have accepted their signatures on memos and only because motbir declared hostile or the persons of department not appeared in evidence, the recovery cannot be disbelieved. Argued that taking many and not likely possibilities, appellant is acquitted, whereas he deserves to be convicted. Learned counsel for the respondent in addition to the reasons assigned by learned Magistrate argued that he fell down because of striking at surface cannot be believed – such is not at all possible and it further shows that respondent falsely and coercively implicated. Submitted that as the findings are based on sound reasons, should not be disturbed unless absurd or baseless one. Considered contentions. Perused record and impugned judgment. Evidence produced is discussed in detail by learned Magistrate with reasons for inference. The same need not to be re-described in detail. Reasons assigned for conclusions cannot be said to be perverse. 4 S.B. Criminal Appeal No. 376/89 (State Vs. Bhanwar Singh) Inspector PW/4 states that appellant was coming on cycle - as suspicion arose, he was asked to stop but he ran away leaving cycle and as appellant fell down, he caught by Constable Roop Singh then search followed and they coming at Pratapgarh registering FIR Ex.P/7 in department then lodged report at P.S and handed over appellant to them. In cross-examination says that Ram chandra (motbir PW/1) coming on cycles had stoped 10-15 minutes earlier then other motbirs coming on his own stopped with Ramchandra from nearby field taken as motbirs – for weighing one was called Bharat lal (PW/3). Similarly he and other witness could not give any convincing reason and explanation as to why appellant ran away on road and fell down. Admittedly on cycle by paint was written name of cycle shop be but no inquiry was made regarding as to who and when has taken the cycle, seizure memo in addition to signature of appellant PW/4 and PW/5 have signatures of five others including PW1 & PW/2 who do not support prosecution and others not presented as witnesses. Convincing and cogent reasons appearing in paragraphs 17 to 22 of the impugned judgment and same are based on evidence produced and facts established. No reason appears warranting interference in the judgment of the trial court judgment dated 29.5.89. Therefore, the appeal is rejected. (C.M. TOTLA), J.