BAKHTAWAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition is directed against the judgment of Additional Sessions Judge, Rajsamand dated 2.3.81 by which accused Bakhtawar Singh was convicted Under Section 4/9 of Opium Act and sentenced to undergo two months' simple imprisonment.

(2.) THE prosecution case is that on 16.12.74 Inspector Nandlal was going to Chittorgarh to prevent smuggling. Abut 36 kilometres from Kelwa he checked Bus No. RRM 259 and found accused petitioner at seat No. 5 in the bus. Accused was in possession of a bag which contained 3 kg. 250 grms opium in polethene bags. He also found 2 kgs 200 grins opium tied on the chest of the accused, The opium was seized. Four packets of samples were obtained from seized material and sent for chemical examination. The accused petitioner was arrested on the spot and was taken to the police station, Rajnagar along with opium. A case Under Section 4 read with Section 9 of the Opium Act was registered. Munsif and Judicial Magistrate, Rajsamand charged the accused petitioner for commit ling offence Under Section 4 read with Section 9 of the Opium Act and proceeded with the trial. Seven witnesses namely Syamlal (PW 1), Man Singh (PW 2), Kailash Puri (PW 3), Nandlal (PW 4), Ghansyamlal (PW 5), Devilal (PW 6) and Mohanlal (PW 7) were examined from the prosecution side. Syamlal (PW 1) bus Conductor supports the case of the prosecution that accused petitioner was travelling in bus No. RRM 259 on 16.12.74 and he was found, by the Inspector, in possession of opium. Nandlal (PW4), Ghanshyamlal (PW5), Devilal (PW6), Mohanlal (PW 7) are employees in the Narcotics Department. They all supported the prosecution story in their statements. In defence, accused petitioner alleged that there was a quarrel in the bus between him and bus conductor in connection with scat and therefore Shyamlal has given statement against him. In defence he produced Bus Driver Ram Singh and Kalu Singh. In their statements they stated that alongwith the accused petitioner, two other persons were sitting on the same seat and nothing was found in possession of the accused. Samples were sent to Forensic Science Laboratory and it was found that packet marked A contained 40 grms of dark brown coloured substance kept in a Cavender Cigarette Case. The packet marked B contained dark brown coloured sticky substance kept in a cigarette case which weighed 42 grms alongwith the inner flap of the Cigarette case. On the basis of these evidence, learned Munsif and Judicial Magistrate was satisfied that the prosecution has proved its case beyond reasonable doubt. He convicted the accused petitioner and sentenced to undergo two months' simple imprisonment. In appeal filed before the learned Additional Sessions Judge, Rajsamand, the learned Judge found that accused has committed the offence Under Section 4 read with Section 9 of the Opium Act and held that accused was rightly convicted and sentenced. Aggrieved accused petitioner has preferred revision petition in this Court.

(3.) AFTER hearing the rival submissions and carefully perusal of the record, I found that four persons were examined in respect of the samples obtained from the seized material and taken to the FSL. Nandlal (PW 4), Ghanshyamlal (PW 5), Man Singh (PW 2) and Kailash Puri (PW 3). Nandlal (PW 4) in his statement states that opium recovered from the accused, samples were taken, in the scaled condition they were handed over to SHO, Rajsamand. Ghanshyamlal, SHO, Rajsamand (PW 5) accepted it that he received scaled samples sent by Nandlal, Inspector of Narcotics Department. SHO, Rajsamand sent it to S.P. Office through Man Singh. Man Singh (PW 2) was examined and states that he delivered the samples in the S.P.Office. From S.P. Office they were sent to the State Forensic Science Laboratory on 20.12.74 and received in the Forensic Science Laboratory on 30.12.74 and were found properly sealed and seal was intact. Taking these facts, into account, the link evidence cannot be doubted. In the decision of Their Lordships in Daulat Ram's case, the samples changed hands and prosecution failed to provce that the samples remained intact. None of those witnesses were examined by the prosecution. We cannot put case in question at par with the case of Daulat Ram for link evidence.