1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R State of Rajasthan vs. Dev Chand & Ors. S.B. Criminal Leave to Appeal No.5 of 2009 under Section 378 (i) and (iii) Cr.P.C. against the judgment dated 16.5.2007 passed by Shri S.K. Mathur, RHJS, Judge Special Court, NDPS Act Cases & Addl. Sessions Judge No.2, Kota, in Sessions Case No.46 of 2005. Date of order :::: 23.03.2009 Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Bhvnish Kumawat, P.P. By the Court: On 6.6.2005 at about 12.40 P.M. Station House Officer, Police Station Udyog Nagar, Kota received a secret information that Dev Chand, Rameshwar and Suresh are coming from Thali Dhakad Khedi for selling opium. This information was recorded in Ex.P.24 and the same was transmitted to Circle Officer V, Kota City, Kota. The Station House Officer Rakesh Pal along with raid party when arrived at Dhakad Khedi road near Emmanual Orphanage then at 1.30 P.M. they found three persons having bags in their hands turned back 2 after seeing the police. They were stopped and when they were inquired about their identity then they disclosed themselves as Dev Chand, Rameshwar and Suresh. They were informed about the information received by the police and the SHO also sent one constable Pratap Singh to bring independent motbirs who returned and informed that independent witnesses are not available. Then the SHO gave his search in presence of the accused and separate notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as `the Act') was given to each of them informing about their right to be searched in the presence or a Magistrate or a gazetted officer upon which they agreed to be searched in the presence of Gazetted officer. Then the Circle Officer was informed on wireless and who came about 2.55 P.M. On spot and disclosed his identity as gazetted officer being Dy.S.P. During search 1.800 Kg. Opium was recovered from the plastic bag which was with accused Dev Chand, 2.500 Kg opium was recovered from the bag of Rameshwar and 2.250 Kg opium was recovered from Suresh. On asking no licence for carrying opium was produced by any one of them. Two samples of 50 gram each were taken out from the contraband so recovered from each of the accused. The samples and the remaining opium were 3 sealed separately. Accused respondents were arrested and case under Section 8/18 of the Act was registered against them. After investigation the police filed challan against all the three accused persons. On the basis of the material and evidence collected by the police during investigation charge under Section 8/18 of the Act was framed against the three accused respondent to which they denied, pleaded not guilty and claimed trial. To prove its case, the prosecution examined 10 witnesses and also got exhibited several documents. In their statements under Section 313 Cr.P.C. the accused respondents denied the allegations and pleaded that Surendra Singh and Rakesh Pal have falsely implicated them. In defence two witnesses were examined. The trial court after examining the entire evidence ocular as well as documentary arrived at a conclusion that in the secret information which was received by the Investigating Officer identity of the accused was not mentioned, no independent witness was taken by the police at the time of the search, the seal which was 4 affixed on the recovered contraband was kept by the Investigating Officer himself and the same was neither deposited in the police station nor handed over to independent person. On the basis of this analysis the learned trial court by the impugned judgment dated 16.5.2007 has acquitted all the three accused respondents. Being aggrieved of the acquittal of the accused respondents of the charge under Section 8/18 of the Act, the State has filed this leave to appeal. Heard learned P.P. and perused the impugned judgment and also the material and evidence available on record. Learned P.P. has argued that the conclusion of the trial court is based contrary to what the evidence has been led by the prosecution. It is not always necessary that the secret information received by the SHO should contain each and every detail of the accused and the SHO is not bound to disclose what information he has received. Difference in the weight of the samples taken at the time of recovery and taken by the FSL, looking to the variation is not so material so as to disbelieve the entire prosecution case. Learned trial court has given benefit of doubt to 5 the accused respondents which is just contrary to the evidence available on record. Having heard learned P.P. I have gone through the impugned judgment and scanned the material and evidence available on the record. Rakesh Pal PW.9 is the Station House Officer who conducted the search of the accused respondents. In his statement this witness has deposed that after receiving the secrete information when he reached on the spot he saw the three accused persons Dev Chand, Rameshwar and Suresh who was coming, he got stopped them and he sent constable Pratap Singh for calling independent witnesses but Pratap Singh reported that he could not lay hands on the independent witnesses the persons of the raid party were taken as motbirs and after giving notice to the accused persons search of the three persons was taken in the presence of the Circle Officer who was a gazetted officer being Dy. S.P. and the opium was recovered from the possession of the accused persons. Two samples of 50 gram each from the recovered substance from all the three persons were taken and the samples and also the remaining substance were sealed separately. The samples and the remaining substance were 6 deposited in the Malkhana in sealed condition and thereafter the samples were sent for chemical analysis. This version of the Investigating Officer is fully supported by PW.3 Pratap Singh, PW.4 Babu Lal and PW.7 Anant Kumar, Dy.S.P. And there is nothing in the cross-examination of these witnesses on basis of which any doubt can be created about the recovery of the opium by the Station House Officer after making compliance of the mandatory provisions of the Act. The conclusion of the learned trial court that identity of the accused persons was not disclosed has no merit. It is true that as per the statements of the witnesses there is difference of weight of the samples mentioned at the time of recovery of the contraband and in the weight of the samples as noted by the FSL. As per the version of the prosecution from the recovered substance two samples of 50 gram opium each from the recovered substance from the three accused persons were taken and after that the samples were sent to the Chemical Analyst. As per the report of the Chemical Analyst the samples taken from contraband recovered from accused Dev Chand were found 57.60 gram and 53.200 grams, the samples taken from the contraband recovered from accused 7 Rameshwar were found 60.740 grams and 58.800 gram whereas the weight of the samples taken out from the contraband recovered from accused Suresh was found to be 53.000 gram and 59.100 gram respectively. Therefore, it is clear that there has been variation in the weight of the samples taken by the police and the samples sent to the FSL but the FSL report reveals that the samples were packed in respective polythene pouch and the same seem to have been weighed by the FSL along with the polythene pouch. Thus, it cannot be said that there has been a major difference in the weight of the samples sealed by the police and the samples received in the FSL and the accused respondents can be given benefit of doubt specially when the prosecution has been able to prove its case on the basis of the ocular and documentary evidence. As per the report of the FSL the substance recovered from the possession of the accused respondents were found to contain morphine more than 2.5%. The trial court has failed to consider the material and evidence available on record and simply on the whimsical grounds has acquitted the accused persons of a serious charge. It is well established by the prosecution that opium was recovered from the person of the accused respondents and there has been compliance of the mandatory provisions of 8 the Act. The seals on the samples remained intact till the samples reached to the office of FSL and if slightest difference is found because of human error of judgment it cannot be inferred that the entire case of the prosecution can be thrown away. The trial court has committed error in considering this aspect of the case and also in acquitting the accused persons. Therefore, the judgment of the trial court warrant interference by this Court. In the result, leave to appeal is allowed. The memo of the leave to appeal be treated as memo of appeal. Appeal is admitted. Accused respondents be summoned through warrant of arrest. (Bhanwaroo Khan),J. bairwa