Muknaram and Another vs State of Rajasthan

Y.R. Meena, J.—This revision petition is directed against the judgment of Sessions Judge, Balotra dated 27-11-81 whereby the learned Sessions Judge has sustained the conviction of accused petitioners u/s 4/9 of the Opium Act but reduced the sentence of each of them to six months rigorous imprisonment and pay fine Rs. 1,000/-, in default of payment of fine to further undergo one month''s rigorous imprisonment.

The facts in brief, as stated are that on 27-11-1974 at 3 a.m. Shri Hanuman Singh, Circle Officer lodged an FIR at Police Station, Barmer stating therein that when the first informant accompanied by District Magistrate, Barmer and Superintendent of Police, were proceeding from Balotra to Barmer in a Car, at about 3.30 A.M. at the outskirts of Shivkar, two persons were seen on a motor cycle, who were apprehended and on search being made a bag tied on the side of the motor cycle was seized. The bag contained material weighing 8 kilo 500 grams and on smell it appeared to be opium. A sample of 30 grms was taken and sealed and the rest of the substance was also sealed. Recovery Memo Ex.P 2 was prepared. On report, a case u/s 9 of the Opium Act was registered. Sample was sent to Forensic Science Laboratory, Rajasthan, Jaipur for examination. As per the report of Forensic Science Laboratory, sample contained solid brown opium. Accused were challaned ans were tried by Chief Judicial Magistrate, Barmer.

As many as five prosecution witnesses and two Court witnesses were examined. Considering the statement of witnesses, the trial court was of the view that accused petitioners have committed offence u/s 9 of the Opium Act. He convicted both the accused petitioners and sentenced each of them two years'' rigorous imprisonment and fine of 2,000/-, in default of payment of fine, further undergo six months'' rigorous imprisonment. Being aggrieved, accused petitioners carried the matter before learned Sessions Judge. Learned Sessions Judge upheld the conviction but reduced the sentence from two years to six months and fine from 2,000/- to 1,000/-. Being aggrieved, accused petitioners came in revision before this Court.

Learned Counsel for the accused petitioners Shri Sandeep Mehta submits that sample was taken of 30 grms while in the Forensic Science Laboratory, Jaipur, it was found of 50 grms, link evidence is not proved, the prosecution has failed to prove that the sample remained intact till it reached to FSL as the person who took the sample was not examined, SHO expressed his ignorance as to who-brought the sample to him and who has taken the sample from Police Station to S.P. Office, it is more important to note that the sample found in FSL was containing 50 grms. Material when the prosecution has failed to prove that the sample remained intact, there should be no conviction. For that, he relied on State of Rajasthan Vs. Daulat Ram, Learned Public Prosecutor, on the other hand, submits that on smell it was found that it was opium and even if we ignore the FSL report, the conviction of accused petitioners was justified. In reply to this, learned Counsel for the accused petitioners submits that once the sample to FSL is sent, the opinion of SHO by smell has no value and should be ignored. For that, he relied on 1988 Cri. L.R. (Raj.) 679q.

After hearing the rival submissions and considering the material on record, while the other facts are not in dispute, I will restrict myself to consider whether the link evidence adduced in respect of the sample taken and reached to FSL is sufficient for conviction?

Facts are not in dispute that accused persons were apprehended at the outskirt of the city, some material was seized from them. As per S.P. Barmer, after apprehending them, they were brought to tehsil and material was weighed at Kotwali, he did not touch the material, he could not found whether there was opium in the bag and did not test also to find out whether it was opium.

None of the PW 1, PW 2, P.W. 4 & P.W. 5 have said that the sample taken was of 50 grms. On the contrary, they said that the sample taken was of 30 grms. P.W. 4. Narpat Singh was SHO, Barmer. He pleaded ignorance as to who brought the sample to him and took it away to S.P. Office and at what time. According to PW 5, no action was taken at the spot but formalities were completed at Thana, Motbir was also called at the instance of SHO to witness the opium seized. FSL report reveals that the sample contained 50 grms. Material.

Their Lordships of the Supreme Court in case of State of Rajasthan Vs. Daulat Ram, has taken the view that where the samples of opium changed several hands before reaching to Public Analyst and yet none of those in whose custody the samples remained, were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question, a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be convicted u/s 9-A. following the view taken by their Lordships of the Supreme Court I also allowed the benefit to accused in revision petition No. 108/81 decided on 12th September, 1990.

In the present case, none was examined to prove the link evidence. Even the person who took the sample to FSL was not examined. SHO in this case pleaded his ignorance as to who brought the sample in Thana and who took it to S.P. Office. Further, in this case when the sample was taken of 30 grms. How it was found in FSL of 50 grms.?

In these circumstances, it cannot be ruled out that the sample was not tampered with or the same which was taken from the material seized from accused petitioners. In my view, prosecution has failed to prove its case in respect of link evidence beyond reasonable doubt.

In the result, the revision petition is allowed. Conviction and sentence of both the accused petitioners are set aside. They are acquitted of the charges. They need not surrender the bail bonds. Bail bonds are cancelled hereby.