KALU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition is directed against the judgment of learned Sessions Judge, Pratapgarh dated 3.3.1981. The learned Sessions Judge has sustained the sentences awarded to Kalu, Veeram and Bhagji by learned Judicial Magistrate, Kapasin Under Section 4/9 of the Indian Opium Act.

(2.) PROSECUTION case is that on 3.6.73 Ajij Mohd., I.O. then Incharge of the Police Station, Rashmi on information through Mukhbir, arranged for raid and proceeded towards the way to village Murili for Nakabandi to apprehend the culprits. At about 3 p.m., it is said that from the side of Lasadia Khurd five persons came and when they were surrounded, three out of five namely, Kalu, Veeram, and Bhagji were apprehended. The other two ran away. The persons apprehended were having some bundles and potliyas. The other two who ran away were also having potaliyas but escaped after throwing their potaliyas on the spot. The substance containing in the bundles and potaliyas was 82 Kgs. 650 grms. Accused present on the spot were arrested. Seizure Memo and Panchnama were prepared. The accused were brought to the police station and first information Ex.P.4 was lodged by PW 11, Ajij Mohd. The accused persons were arrested vide Ex.P.6 and P.7 respectively. Alleged samples were sent to the Forensic Science Laboratory, Jaipur through one Shri Mohan Singh (PW 10) FC No. 957 and received by the Laboratory on 16.7.73. The samples were examined by Shri Ramesh Chandra Sharma. The report of the chemical examination is Ex.P.8. According to the report of Forensic Science Laboratory, packets marked ABGJKL and M contained dark brown solid stiky substance and packets Marked EFCDHI contained solid dark brown coloured substance. The substance was opined as opium.

(3.) THE learned Counsel for the accused petitioners Shri M.M. Singhvi argued that the samples one stated to have been taken on 3.6.73 and were delivered in the office of Forensic Science Laboratory on 16.7.73. In this regard except Mohan Singh none was examined. Mohan Singh only states that the samples were taken by him and he delivered the samples on 16.7.73. After taking of samples by Ajij Mohd on 3.6.73, they were sent to the S.P. Office on 5.7.73. In this period in whose custody the samples remained nobody knows and from S.P. Office the samples were sent on 16.7.73. Again in whose custody these samples remained is not known. He further pointed out that samples were taken of 30 grms each but in FSL report it was found that samples marked EFCDHI contained 20 grms and remaining samples contained material of opium weighing from 40 grms to 62 grms. Therefore, it cannot be said that samples remained intact till they reached to FSL. For that he relied on the decision of Supreme Court in case of State of Rajasthan v. Daulat Ram : 1980CriLJ929. He further argued that PW 11 Ajij Mohammed, ASI was not competent to investigate the case as he himself was seizing officer and lodged the FIR. He relied on the judgment of Rajasthan High Court in case of Banshilal v. State of Rajasthan decided on 21st February, 1990. His third argument was that as per the provisions of Section 484 of Criminal Procedure Code which came into force during the trial, the Sub Divisional Magistrate was only competent to try the case and not Munsif Magistrate. He relied on : 1977CriLJ220 .