MUKNARAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition is directed against the judgment of Sessions Judge, Balotra dated 27 -11 -81 whereby the learned Sessions Judge has sustained the conviction of accused petitioners Under Section 4/9 of the Opium Act but reduced the sentence of each of them to six months rigorous imprisonment and pay fine Rs. 1,000/ -, in default of payment of fine to further undergo one month's rigorous imprisonment.

(2.) THE facts in brief, as stated are that on 27 -11 -1974 at 3 a.m. Shri Hanuman Singh, Circle Officer lodged an FIR at Police Station, Barmer stating therein that when the first informant accompanied by District Magistrate, Barmer and Superintendent of Police, were proceeding from Balotra to Barmer in a Car, at about 3.30 A.M. at the outskirts of Shivkar, two persons were seen on a motor cycle, who were apprehended and on search being made a bag tied on the side of the motor cycle was seized. The bag contained material weighing 8 kilo 500 grams and on smell it appeared to be opium. A sample of 30 grms was taken and sealed and the rest of the substance was also sealed. Recovery Memo Ex.P 2 was prepared. On report, a case Under Section 9 of the Opium Act was registered. Sample was sent to Forensic Science Laboratory, Rajasthan, Jaipur for examination. As per the report of Forensic Science Laboratory, sample contained solid brown opium. Accused were challaned ans were tried by Chief Judicial Magistrate, Barmer.

(3.) LEARNED Counsel for the accused petitioners Shri Sandeep Mehta submits that sample was taken of 30 grms while in the Forensic Science Laboratory, Jaipur, it was found of 50 grms, link evidence is not proved, the prosecution has failed to prove that the sample remained intact till it reached to FSL as the person who took the sample was not examined, SHO expressed his ignorance as to who -brought the sample to him and who has taken the sample from Police Station to S.P. Office, it is more important to note that the sample found in FSL was containing 50 grms. Material when the prosecution has failed to prove that the sample remained intact, there should be no conviction. For that, he relied on AIR 1980 SC 1314. Learned Public Prosecutor, on the other hand, submits that on smell it was found that it was opium and even if we ignore the FSL report, the conviction of accused petitioners was justified. In reply to this, learned Counsel for the accused petitioners submits that once the sample to FSL is sent, the opinion of SHO by smell has no value and should be ignored. For that, he relied on 1988 Cr. L.R. (Raj.) 679.