STATE OF RAJASTHAN Vs. UDAI LAL

JUDGEMENT

(1.) Leave granted.

(2.) State of Rajasthan, aggrieved by the judgment and order dated 15-09-2005 passed by the High Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal Appeal No. 1050 of 2002 acquitting the respondent/Udai Lal, who had been convicted by the Special Judge, NDPS cases, Chittorgarh under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced him to undergo 10 years rigorous imprisonment and a fine of Rs. One lakh, has filed the above appeal.

(3.) BRIEF FACTS : According to the prosecution, on 19-08-2001, at about 3.05 p.m. one Himmat Singh, Station House Officer, Police Station, Chanderiya, received an information from Mukhbir about transporting illicit liquor in truck No. RJ 09/G/0604 and acting on that information he along with Amar Singh P.W.5, Udai Singh P.W.6, Gopal P.W.11 after calling two motbirs Dinesh Khatik P.W. 1 and Iqbal P.W.2, taking with them the necessary articles for investigation, started in Government jeep. At 3.15 p.m., as per the information received, the said truck arrived there from the side of Chittor and was got stopped by signalling. The truck was covered by tarred canvass. After removing the canvass from the truck, when the truck was searched, the back side of bags was found to be of maize and in the rest part of the truck there were gunny bags. While checking the maize bags, smell of narcotic substance was felt and after giving notice to driver Udai Lal, he was asked about his option to be searched either by a Magistrate or Gazetted Officer or Station House Officer himself. The driver gave his consent in writing to give search to the S.H.O. In the search of the truck, 21 bags of maize and 119 bags of poppy husk were found, which were seized at the spot and out of those seized bags two samples of 500 gms. each were taken out from five bags and sealed and marked then and there. The rest of the material was also seized and sealed. The accused Udai Lal was arrested and a case against him under Section 8/15 of the NDPS Act was registered. During investigation, the material was found to be got loaded by one Dalchand Brahmin, as such he was also arrested under Section 8/28 of the Act. Challan against both the accused was filed in the Court. The matter came up before the Special Judge, NDPS Cases, Chittorgarh and the parties were heard on framing of charge. Charge under Section 8/15 of the Act was framed against the accused/Udai Lal while the other accused Dalchand Brahmin was left out for the offence under Section 8/29 of the Act. The accused denied the charge. The prosecution, in Supplort of its case, examined P.Ws 1 to 12 and Exh. P-1 to P-22. After closing of the prosecution evidence, when the statement of the ac cused was recorded under Section 313 of the Cr P.C., he stated that neither he was driving the truck nor the poppy husk was recovered from him. He claimed himself to be innocent. In defence, the accused examined himself as D.W.1 and also examined D.Ws 2-5. The learned Special Judge, after considering the materials and hearing both sides, by judgment and order dated 02-12-2002, convicted the accused for the offence under Section 8/15 of the NDPS Act and sentenced him as mentioned above. Aggrieved by the judgment and order passed by the learned Special Judge, the ac cused preferred S.B. Criminal Appeal No. 1050 of 2002 before the High Court of Judicature for Rajasthan at Jodhpur. By the impugned judgment, the High Court, after finding that the evidence led by the prosecution is not sufficient to bring home the guilt of the accused interfered with the order passed by the Special Judge set aside the conviction and sentence and allowed the appeal. Questioning the order of acquittal by the High Court, the State of Rajasthan through Secretary, Department of Home Affairs has filed the above appeal.