STATE OF RAJASTHAN Vs. DAULAT RAM

JUDGEMENT

(1.) THIS appeal by special leave is directed against an order of the High Court of Rajasthan dated 5th March, 1973 by which the respondent Daulat Ram was acquitted of the charge under section y -A. of the Opium Act. It appears that on the 24th January, 1968 the District Excise Officer went to search the shop of the respondent in Jodhpur city and P. W. 2 Sher Singh, Excise Inspector, recovered an iron box along with two tins filled with opium.

(2.) ON being interrogated the respondent disclosed to the Excise Inspector that some quantity of opium was lying in his house at Ratanada and in pursuance of the information given by the respondent the raiding party want to the home of the resp3ndent and at his instance three tins alleged to have contained illicit opium were also seized. Several samples ware taken and sealed and given to Jaw m Singh of the Excise Headquarters on the 24th January, 1968. On the 27th January, 1968 the sample marked W were taken from the Excise Headquarters and were handed over to the S. I. Aidanram of Udai Mandir Police Station. On 29th February, 1963 Nathu Singh took samples, marked A, given to him by P. W. 11 Harak Ghand to the office of the Superintendent of Police, Jodhpur, for onward transmission to the Public Analyst but the samples were not accepted by the office of the Superintendent of Police as the labels were not in order. It is an admitted case of the prosecution that the samples changed several hands before reaching the public analyst. In other words, the samples remained in the custody of S. I. Aidanram, P. S. Udai Mandir, Nathu Singh Gajraj Singh Jawan Singh acid the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody the scales were not tampered with.

(3.) IT is true that Harak Chand and Jabbar Singh have stated that the seals of the samples were tact so long as they were in their custody. But then as pointed out above neither Jawan, Nathu, Gajraj Aidanram and Assistant Public Analyst were examined hence it cannot be said that the prosecution has proved all the links starting from the seizure of the sample till the same reached the hands of the Public Analyst so that the court could conclude that their seals remained intact throughout. 5 The High Court in view of this serious lacuna was of the opinion that the prosecution has not proved beyond reasonable doubt that the opium seized was the opium which was seal to the Public Analyst. In fact, the prosecution realised its mistake and at the fag end of the trial an application was made under section 540 Criminal Procedure Code to examine Nathu Singh, Gajraj Singh and Jawan Singh. This application was rejected by the learned Magistrate. Even before the Sigh Court the stand taken by the counsel for the State was extremely vacillating and at one time he filed an application for additional evidence and some time later chose to withdrawn it. It is obvious that the onus is on the prosecution to prove the entire case at the trial and the prosecution could not be allowed to fill up the gaps or lacuna left at the trial, at the appellate or re visional stage. In these circumstances, we do not find any error of law in the view taken by the High Court. We find no merit in this appeal which is accordingly dismissed. Appeal dismissed.