IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State vs. Abdul Amid S.B. CRIMINAL APPEAL NO. 56/1988 Against the judgment & order dt. 27.08.1987 passed by Additional Chief Judicial Magistrate No.1 Jodhpur in Criminal Case No. 191/1983. Date of Order : 15 th April, 2009 PRESENT HON'BLE MR. JUSTICE C.M. TOTLA Mr. A.R. Nikub, Public Prosecutor. Mr. R.K. Charan for the accused respondent. BY THE COURT: This appeal by State challenges acquittal of appellant for offence of Section 9 of Opium Act by the Court of Additional Chief Judicial Magistrate in Criminal Case No. 191/83, as per judgment dated 27.8.87. Heard and considered rival arguments. Facts in brief, as per prosecution, are that on 15.01.1975, S.P. City West, Jodhpur on receipt of some secret information arriving in the house at the room of the appellant and before witnesses and presence of appellant searched the room where allegedly behind a jute bag and in a green polyster was found opium alongwith weigh and weights of 100, 200 and 10 gm etc. The opium 2 kg 30 gm and samples taken seized and sealed and in the same room found 350 gm of ganja also seized and sealed separately. Memo prepared and on the written information of ASP, registering FIR No. 20/75, accused appellant arrested. Sample of substance on examination at FSL found to be of opium. Appellant charged for possession of 2 kg 300 gm of opium and on behalf of prosecution examined are recovery officer ASP PW/6 and accompanying Head constable PW/4 who have stated the recovery as above. The independent witnesses PW/2 Teja Ram and PW/5 Madan lal declared hostile have not supported the prosecution. PW/7 Constable relates to delivery of articles at FSL and PW/1 is I.O. SHO. Learned trial Magistrate holding the recovery to be proved, arrived at conclusion that prior to search, no memo regarding search prepared which is contrary to the mandatory provisions of Section 14 of the Act, so the search is not as per law and accordingly acquitted respondent. In impugned judgment, is also mentioned that in other case of possessing Sulfas and ganja, appellant is acquitted but rightly no inference taken on this basis. Learned Public Prosecutor argued that appellant's acquittal is solely on the ground of non-following of provisions of Section 14 of the Act rendering the search and seizure completely illegal but subsequent to the impugned judgment, by the Courts is clearly held that only non- compliance of Section 14 of the Act is not fatal for prosecution. Argued that since recovery is held to be proved and as compliance of Section 14 of the Act is not mandatory, so accused should be convicted and adequately punished. In support of contention, Learned Public Prosecutor relied on decision of Hon'ble Supreme Court in State of Maharashtra Vs Natwar lal Damodar Das Soni reported in AIR 1980 SC 593. Learned counsel for the respondent accused argued that even if it is assumed that subsequently provisions of Section 14 of the Act are held to be of the nature as argued by prosecution, even then the same did not help prosecution as when accused acquitted by the impugned judgment, compliance of Section 14 of the Act was necessary. Argued that even otherwise, only on the basis of statement of recovery officer, not supported by independent witnesses, recovery and hence possession of respondent cannot be taken to be proved. Submitted that recovery from possession of respondent is not proved and neither is proved that sample till handing over at laboratory intact and safe. Lastly submitted that as per memos of seizure, from the room also separately recovered and sealed was ganja and sulfas at the same time and the appellant is acquitted in that case, meaning thereby that recovery from the possession is highly doubted. Submitted that when recovery of the same time and place when dis-believed, contrary conclusion in related cannot be. Countering above argument, learned Public Prosecutor submitted that acquittal in other charge-sheet bears no relevant and that may be because of several reasons. Thoughtfully considered the arguments. Admittedly the provisions of Section 14 of the Opium Act are not followed. Learned Trial Magistrate taking strength from the judgment of Hon'ble Supreme Court reported in AIR 1979 SC 711 arriving at the conclusion of binding nature of Section 14, 15 and 16 of the Act held the entire search and recovery to be illegal one and this Court in its considered opinion now see no particular reason to hold otherwise for the incident of that time. Here it is also relevant to mention that alleged recovery pertains to year 1975 and about 34 years have elapsed. For the above reasons, there is no merit in this appeal and the same is dismissed. (C.M. TOTLA), J.