STATE OF M P Vs. BHAGATRAM

JUDGEMENT

(1.) Heard Shri S.M. Bapat for the state/appellant and Shri C.R. Joshi for the accused/respondent.

(2.) The respondent has been acquitted from a charge under section 8/18 of the N.D.P.S. Act (for short the act) by the Sessions Court. This State appeal has been filed against the acquittal of the respondent. According to the prosecution on 14.4.1987 at about 5.30 in the morning the respondent was apprehended and 3 kg. 200 gms of contraband opium was recovered from his possession. On trial the respondent has been acquitted disbelieving the evidence of Mangilal Chouhan, S.H.O. Jiran. The trial Court has found that the seized article was opium but has found that it has not been proved that it was recovered from the respondent.

(3.) Prosecution had examined P.W.1 Jagdish Zawar, P.W. 2 Khemraj, P.W. 3 Mohanlal and P.W. 4 Mangilal Chouhan, the S.H.O. P.W. 1 Jagdish was Chemical Assistant Grade I in the opium factory Neemuch. He proved report Ex. P1 1. According to his report, opium was the seized article which was sent for examination. The trial Court has rightly believed his testimony and held that the seized article in this case was opium. P.W. 2 Khemraj was a chowkidar of village Karadiya Maharaj. He deposed that on the date of the incident at about 12 midnight S.H.O. of Jiran had come to his village alongwith a constable. They went away towards certain other villages on patrol duty. At about 6 in the morning they returned in the villages on patrol duty. At about 6 in the morning they returned in the village alongwith the respondent Bhagatram. The S.H.O. told the witness that opium has been found with Bhagatram. On weighing that opium it was found to be 3.200 kgms. This witness was declared hostile as he has refused to have seen seizure of opium from the respondent. He was contradicted with his case diary statement also P.W.3 Mohanlal did not support the prosecution on the point of seizure of opium and was declared hostile. He has totally denied the suggestion that he had seen Bhagatram riding on cycle with a bag hung on the cycle. P.W. 4 Mangilal Chouhan who is S.H.O. Jiran has totally supported the prosecution story. The trial Court has disbelieved him because of minor contradictions in his statement. The Court has taken into account the judgment in some other case in which S.H.O. Mangilal Chouhan had seized opium. In that case this very Sessions Judge had not relied on him. In para 19 of his cross-examination P.W. 4 Mangilal was put questions regarding acquittal of one Prithviraj in another case. This is quite irrelevant but the Court has taken into consideration the acquittal of Prithviraj in that case, on the ground that the seizure of contraband was not proved. The appreciation of evidence of Mangilal Chouhan by the Court is also improper anti he has been wrongly disbelieved. However, since two of the prosecution witnesses, one amongst them chowkidar, who according to prosecution were present at the time the contraband was seized from the possession of the accused have turned hostile, it would not have been proper to base conviction only on the statement of Mangilal Chouhan though unshaken in material aspects. In any case in an appeal against acquittal the acquittal cannot be interfered with in the circumstances in which two views were possible. When out of three witnesses said to be present on the spot two have not supported the prosecution case, it cannot be said that it is a case where two views are not possible. This appeal has, therefore, no force and is dismissed. Appeal dismissed.