STATE Vs. BAXSHISH SINGH

JUDGEMENT

(1.) The instant appeal has been preferred by the State of Rajasthan under Section 378 (iii) and (i) of the Cr.P.C. against the judgment dated 17.07.1997 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No.(177/94) 156/97 whereby, the respondent accused Baxshish Singh has been acquitted of the charge under Section 8/18 of the NDPS Act and accused Kalu Singh has been acquitted of the charge under Section 8/18 read with Section 29 of the NDPS Act.

(2.) The brief facts relevant and essential for the disposal of the appeal are noted herein below:- Shri Azad Kumar Sharma, Dy.S.P., Circle Officer, Bhilwara (PW/5) along with the police team, was on inspection duty looking out for the anti-social elements at the Roadways Bus Stand, Bhilwara on 29.04.1994. It is alleged that Shri Sharma received an information from a source that a person from Punjab had come out of the roadways bus stand canteen, who was carrying a cream coloured suitcase containing suspected contraband opium. Shri Sharma deployed panch witnesses to assist in the proposed search proceedings. The suspect was found near the canteen of the bus stand. He was carrying a cream coloured suitcase. On seeing the police party, he tried to run away, but was stopped. He gave out his name to be Baxshish Singh S/o Jagtar Singh Panjabi. The accused was given a notice under Section 50 of the NDPS Act and then, search of the suitcase was taken wherefrom, blackish semi solid substance suspected to be opium was recovered. On weighing the weight thereof came to be 7 kgs. Two samples of 30 gms. each were taken out from the suspected contraband and the seized contraband as well as the samples were sealed. Thereafter, an FIR No.70/94 came to be registered against the respondents at the Police Station Subhash Nagar, Bhilwara for the offence under Section 8/18 of the NDPS Act. After investigation, a charge sheet was filed against the respondents for the offence under Section 8/18 read with Section 29 of the NDPS Act. The prosecution examined as many as 11 witnesses, exhibited 15 documents and 3 articles to prove its case. Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegations. No evidence was led in defence. At conclusion of trial, the trial court found that the link evidence regarding forwarding of the samples of the contraband to the FSL was not satisfactory and thus, the FSL report could not be read in evidence. On this ground and also on the ground that the prosecution did not ensure compliance of the mandatory requirements of Section 42 (2) of the NDPS Act and that no evidence was led to connect the accused Kalu Singh with the crime, the accused respondents were acquitted of the charges by the impugned judgment dated 17.07.1997.

(3.) Learned Public Prosecutor has vehemently and fervently contended that the prosecution led complete link evidence to establish the sanctity of the samples forwarded to the FSL and that the view taken by the trial court in this regard is illegal and contrary to the facts. He further submits that as the search was taken from a suitcase being carried by the accused at a public place, the provisions of Section 42 would not apply and thus, the acquittal of the respondents of the charge under Section 8/18 read with Section 29 of the NDPS Act is perverse and hence, the impugned judgment deserves to be set aside.