STATE OF RAJASTHAN Vs. BANSHI LAL

JUDGEMENT

(1.) THIS appeal has been filed by the State against the judgment of the Sessions Judge, Jodhpur dated 25th June, 1973 in Criminal Appeal No 40/73. The Sessions Judge, by his judgment aforesaid, allowed the appeal filed by the respondent against the judgment dated 10th April, 1973 passed by the Excise Magistrate, Jodhpur and acquitted the respondent of the charge under section 9 of the Opium Act (hereinafter referred to as 'the Act' ).

(2.) THE prosecution case, briefly stated is as under: On 14th November, 1969, at about 11 A. M. Mohan Lal (P. W. 6), Excise Inspector, Chittorgarh and Manohar Lal (P. W. 3) Excise Inspector, Bilara, conducted a search of the house of the respondent at Bilara and during the course of search of the said house, found a tin containing two bags. One of the bags contained 8 kgs. of opium and the other bag contained 1. 60 kg. of opium. After taking samples of the contents, of both the bags, they seized both the bags and after placing them in the tin sealed the same. THE packets containing the samples of the contents of the two bags were also sealed. THEreafter a report was made by Mohan Lal (P. W. 6) at P. S. Bilara. Along with the said report he submitted the sealed tin containing the two bags having 9. 60 kgs of opium as well the two sealed packets of the samples of the contents of the two bags. THE said report was registered at P. S. Bilara on 14th November, 1969 at 5. 30 P. M. on the basis of the said report, a case under section 9 of the Opium Act was registered, against the respondent. After completing the investigation, the police filed a challan against the respondent in the Court of Excise Magistrate, Jodhpur and a charge under section 9 of the Opium Act was framed against the respondent.

(3.) SHRI M. C. Bhati, the learned Public Prosecutor appearing for the State has submitted that the learned Sessions Judge was in error in holding that the report (Ex. P. 5) of the Assistant Director, Chemical Section, Police Forensic Science Laboratory, Rajasthan, Jaipur should not be read against the accused to fasten the guilt on him. The learned Public Prosecutor has pointed out that in the report (Ex. P. 5),it has been stated that 'the parcel (s) of two packets enclosed within dirty white cloth cover which were properly sealed with impression of a seal corresponding with the seal impression forwarded". The learned Public Prosecutor has submitted that in view of the said statement in the report, it must be held that the seals, which were placed on the packets of the samples at the time when they were sealed by the Excise Inspector, were found intact by the Assistant Director and, therefore, it cannot be said that the seals had been tampered and there is no reason not to accept the said report. The learned Public Prosecutor has further submitted that even if the report excluded from consideration, there is other evidence to show that the contents of the bags found in the house of accused-respondent during the course of search conducted on 14th November, 1969 were opium. In this connection, the learned Public Prosecutor has invited our attention to the evidence of the Excise Inspector, Mohan Lal (PW, 6), who has stated that the opium was smelt and tasted. The learned Public Prosecutor has submitted that in view of the aforesaid evidence of the Excise Inspector that the article, which was seized from the house of the respondent, was opium, has not been challenged during the course of cross-examination and, therefore, it must be held that the said article was opium. In support of his aforesaid submission, the learned Public Prosecutor has placed reliance on the decision of the Supreme Court in Baidyanath Mishra vs. The State of Orissa (1) and the decisions of this Court in State vs. Sukh Ram (2) and Ana Ram vs. State of Rajasthan (3 ).