1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Pillu @ Prahlad S.B.Cr. Appeal No.168 of 1999 Under Section 378(i) (iii) Cr.P.C. against the judgment dated 29.3.1997 passed by Shri Jagpal Singh, Special Judge, NDPS Act, Bharatpur in Sessions Case No.76/1995 by which the accused respondent was acquitted for the offence u/s 8/18 and 8/20 of the NDPS Act. DATE OF JUDGMENT ::: November 21, 2008 P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Shyam Arya, P.P. for the State. Mr. Piyush Sharma for Mr. NA Naqvi for the accused respondent. BY THE COURT Challenge in this appeal is to the judgment dated 29th March, 1997 rendered by Special Judge, NDPS Act, Bharatpur whereby the accused respondent Pillu alias Prahlad was acquitted in the offence under Section 8/18 and 8/20 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “Act, 1985”) and convicted in the offence under Section 3 read with Section 25 of the Arms Act and sentenced to a period of one year Rigorous imprisonment and together with a fine of Rs.200/-; in default of payment of fine to further suffer simple imprisonment for two months. 2. The accused respondent Pillu alias Prahlad is alleged to have been found in possession of 4 kg 900 grams opium and 2 kg 600 2 grams charas. It is alleged that on 21st June, 1995 at 6.00 AM the then circle officer city Bharatpur accompanied with the police personnel reached at the house of accused Pillu @ Prahlad on an information received from the informer and took the search of his house wherein in almirah two polythene bags were found and each bag separately contained opium and charas of the aforesaid weight. The search and seizure Officer Shri Bharat Lal having taken samples separately, duly sealed each of them and seized vide memo Ex.P/1 where upon FIR Ex.D/6 was lodged and on completion of investigation the challan was filed against him. 3. The accused was indicted for the offences under Section 8/18 and 8/20 of the Act 1985 and section 3 read with Section 25 of the Arms Act who pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses to prove its case. The accused in his statement under Section 313 of Cr.P.C. claimed innocence and put a defence that the house from where the aforesaid opium and charas is alleged to have been recovered did not belong to him and he never resided there. They are five brothers and living jointly. He had no bearing with the commission of offence and was falsely implicated in the case. On completion of trial, the accused respondent was acquitted in the offence under Section 8/18 and 8/20 and convicted in the offences under Section 3 read with Section 25 of the Arms Act as indicated hereinabove. 4. Heard the submissions advanced by the learned Public Prosecutor appearing for the State, learned counsel for the accused respondent and scanned the relevant material on record. 3 5. The learned Public Prosecutor has contended that the trial court has not properly appreciated the evidence of prosecution witnesses and erroneously acquitted the accused on technical ground. The evidence of the prosecution witnesses is worth relying and the offences under Section 8/18 and 8/20 are proved against the accused beyond reasonable doubt. So far as the difference in weight of the sample of opium and charas duly sealed at the time of search on the spot and the sample reached at the FSL Jaipur, is concerned, the learned trial Court did not keep the fact in mind that when the sample was separately taken on the spot, it was wet and when it reached FSL for chemical examination, it got bit dried, as a result of which difference in the weight of sample emerged. The prosecution has succeeded in establishing that the sample reached at FSL Jaipur was the same which was sealed on the spot by the search and seizure officer, hence, the finding of acquittal of the accused in the offence under Section 8/18 and 8/20 of the Act 1985 should be set aside and the accused respondent may be convicted accordingly. 6. Per contra, the learned counsel for the accused respondent has simply submitted that the judgment of the learned trial Court is cogent and well meritted which suffers from no infirmity, as such the State appeal should be dismissed. 7. Having reflected over the submissions advanced at the bar and scanned the relevant material, it is noticed that the prosecution case wholly rests on the evidence of the police officers. Relying upon the judgment of Nathia Vs. State of Raj. (1991 RLR, 15) Shri Sher Singh Vs. State of Raj. (Criminal Law Reporter 1994, 94) Balram Vs. State of Raj. (Crimes VIII 1993 (2) 1130),Satpal Vs. State of Raj. (Cr.Law Reporter 1996 (Raj.) 228) and Tulsi vs. State of Raj. (Cr. Law 4 Reporter 1996, 815) the learned trial court observed that a seal by which the samples were duly sealed, an impression whereof was not sent to FSL along with the samples sent for chemical examination. The learned trial Court further observed that in view of this circumstance, it was not proved that the seals affixed on the samples remained intact throughout from the place where they were taken to the place where they were deposited. Further while relying upon the judgment of Satpal Vs. State of Raj. 1996 Criminal Law Reporter, 228 the learned trial Court observed that the samples of each opium and Charas taken on the spot weighed 100-100 gms., whereas the weight of these samples when reached at FSL for chemical examination was found to be 93 gms and 92 gms. Hence, it could not be proved beyond doubt that the samples which were deposited in FSL, Jaipur for chemical examination were the same which were duly sealed by the search and seizure officer on the spot. 8. Having pondered over the entire prosecution evidence including the relevant documents, I do not find any reason to take a different view to that of the view taken by the learned trial Court. I also, do not find any ground to disturb the finding of acquittal arrived at by the trial Court. The learned trial court has critically examined and properly appreciated the prosecution evidence. The impugned judgment does not suffer from any infirmity and the same is found to be cogent and well meritted, I am in unison with the finding of acquittal arrived at by the learned trial Court and to my firm view, the impugned judgment calls for no intervention. 9. For these reasons, the State appeal being bereft of merits stands dismissed. The accused respondent is on bail and his bail bonds are ordered to be discharged. (MAHESH BHAGWATI)J. PCG