State Of Rajasthan vs Daul @ Daulat Giri

Prosecution version as held during trial was that the respondent was found to be in possession of merely 6 Kg. of opium. PW.1 Jaswant Singh, SHO, Police Station Kanera -2- District Chittorgarh prepared a Parchakayami (Ex.P/7) on 15.6.1995 at about 7.15 p.m. stating inter-alia that on 15.6.1995 at about 2.00 p.m., he received a secret information from mukhbir to the effect that on that day before 6.00 p.m., one person, namely, Daul Giri (present accused respondent) S/o Madhugiri, resident of Shamkhdo Ka Kheda having opium in his possession would pass through Palchha Ghata on foot from the village Badawali. That information was reduced into writing by Jaswant Singh (PW.1) and the same is Ex.P/2 and apart from this, that information was also produced in Rojnamcha Ex.P/1A. The copy of the secret information was also sent by Jaswant Singh (PW.1) to superior officer Dy. PP Khetdan (PW.13) and Khetdan (PW.13) was also requested to come and join the raiding party.

Thereafter, Jaswant Singh (PW.1) alongwith Khetdan(PW.13), Manikant (PW.12), Reader of Dy. SP and other police officials and one independent motbir Parbat Singh (PW.6) proceeded towards the spot in a Government vehicle at about 4.0o p.m. and at about 4.15 p.m., they reached Badawali- Pallchha Road and made Nakabandi and during Nakabandi, at about 5.00 p.m., they saw one person having gunny bag on his head coming on foot from Badawali and he was encircled and on being asked, he told his name as Daul Giri (present accused respondent). Thereafter, the accused was informed about the secret information that he had contraband opium and, therefore, he was to be searched. Before making search, the accused appellant was given a notice Ex.P/3 under the provisions of Section 50 of the NDPS Act asking him whether he -3- wanted to be searched before the Magistrate or Gazetted Officer and upon this, the accused gave his consent that he could be searched by Jaswant Singh (PW.1). Thereafter, he was searched in presence of two motbirs, namely, Khetdan (PW.13) and Parbat Singh (PW.6) and during search, from the gunny bag, plastic bag containing black-brown substance was recovered and on being tested, it was assessed that it was nothing but contraband opium and on being asked, the accused told that he had no valid licence to keep that opium. On being weighed, its weight was found to be 6 k.g., out of which, two samples of 30 grams each were taken for the purposes of chemical analysis and sealed separately on the spot and marked as A/1 and A/2 and the remaining opium was also sealed separately on the spot and marked as A. The fard-

In appeal the only stand of the respondent which weighed with the High Court was that on the day when the samples were in the custody of one Jamnalal, the non-examination of aforesaid Jamnalal rendered the prosecution version unacceptable. Accordingly, the conviction was set aside and the respondent was directed to be acquitted.

In the instant case the position stands on a much better footing. There was in fact no delay and in fact the samples which were kept in the SP office were received back on the very same day. There is no material to support the conclusion of the High Court that there was possibility of tampering with the samples. The observation as noted above clearly overlooks the clear statement of the FSL report that the seals were intact.

Looked at from any angle, the judgment of the High Court is unsustainable and set aside and that of the trial Court is restored. The respondent shall surrender to custody to serve out the remainder of sentence.

The appeal is allowed.