BQDRILAL Vs. STATE OF M. P.

JUDGEMENT

(1.) IT is the prosecution case that opium was seized on 21.9.85 as per seizure memo Ex.P.3. Seal was broken and two samples of 30 gms. each were taken on 23.11.85 as per memo Ex. P 5, what prevented the police from taking these samples in presence of the accused? More so when the seals of the attache were to be broken As per Ex.P.3, two samples were already taken on 21.9.85. Then what was the need for again taking the same on 23.11.85? If it was to be produced in the Court, as mentioned in Ex.P.5, why were the samples so taken were not produced in the Court? The witnesses Bhavani Shankar PW -3 and Ram gopal PW.4, in whose presence the seals were broken (as per Ex.P.5), do not at all support the prosecution on this point. The samples so taken were not even shown to these witnesses, so much so that S.O. Tiwari PW.7 does not say a word in his evidence about these samples taken on 23.11.85, although he refers to Ex. P .5, but the samples were neither shown nor exhibited in the Court.

(2.) IT is significant to note that the key of the attache was not siezed by the S.O. PW.4, as admitted by him. The question that arises for consideration now could it be opened on 23.11.85 in absence of the accused? In face of the prosecution case that it was locked and sealed on 21.9.85.

(3.) THE constable who took the sample from police station, Shamgarh, to the Medical Asstt at Ncemuch, has not been examined by the prosecution. But going through the statement of the medical assistant, PW.5, it would be clear that he had received the sample on 10.10.85, As is also evident from his report dtd.27.10.85 EX.P.2. A constable deputed on duty for delivering sample at a place hardly at a distance of 60 kms. from the Police Station, takes 7 days to reach Neemuch and there is no explanation forthwith coming from the prosecution side nor the constable himself examined by the prosecution. The fact that the samples were again taken that that too in absence of the accused after breaking open of the seal of the attache on 23.11.85, two months after its seizure for the above purpose as mentioned in the Ex.P.5, for producing the sample in the Court yet the samples are not produced nor the independent witness supported the prosecution case on the point makes the samples very suspicious and a matter of investigation for the police.