STATE OF RAJASTHAN Vs. MANAK LAL

JUDGEMENT

(1.) This is a State appeal against the order of acquittal of the accused-respondent Manak Lal of the offence under Sec. 9 of the Opium Act, recorded by the Judicial Magistrate, No. 1 First class, Jodhpur. The learned Magistrate ha found that the Art. contained in the bag was recovered from the possession oi the accused, but the prosecution has failed to prove that the article recovered wail opium. The learned Magistrate did not read the chemical report against the accused as the prosecution did not lead any evidence that the samples, which were taken oil the article, were sent in sealed condition and the seals remained in tact. The carrier Sardul Singh was not examined, nor Narayan Singh S.H.O. (P.W. 1) has stated about the conditions of the seals. Thus, the learned Magistrate recorded the order of acquittal on the ground that the article recovered was opium, has not betel proved by the prosecution.

(2.) Mr. Niyazuddin Khan, learned Public Prosecutor, for the State submitted that Raj Narayan (P.W. 3), Sub-Inspector, has stated in the cross-examination that the article recovered was tasted and it is on the basis of tasting by him that he has stated the article recovered to be opium in his statement The statements of Preventive Inspector Shri Ram Krishan (P.W. 2) and Rail Narayan (P.W. 3) are to the effect that what was recovered from the accused was opium, so on the basis of the statements of Ram Krishana and Raj Narayan it should be found that it was opium, which was recovered from the possession of the accused, although he conceded that the evidence relating to seals on to sealed packets remaining intact, has' not been led by the prosecution.

(3.) The sole question is whether the prosecution has been able to establish that the article recovered, was opium It may be stated that neither Ram Krishans nor Raj Narayan, has stated that the article recovered gave the smell of opium Ramkrishna has not stated that it was tasted by him. There is simply the statement of Ram Krishana to to the effect that the opium was recovered from the possession of the accused. Ram Narayan's statement to my opinion, is incomplete and the link is missing in as much as he has not stated that on tasting the article, he found to be opium. He has simply stated that he and the Motbirs tasted the article. Oil such tasting what was found by him, has not been stated by him. The Motbirs have not at all supported the version given by Shri Raj Narayan. Rather, to Motbirs have turned hostile. Khairaj Motbir in his cross-examination first stated that the article recovered was tasted, as well as its smell was also taken and then it appeared to be the opium, but thereafter he stated that he did not have any smell of it. It was Fateh Singh, who disclosed that the article recovered was opium. The other Motbir Shiv Karan (P.W. 4) has simply stated that the article of brown colour was recovered. Beyond that he has not stated any thing. Thus, there is no convincing and credible evidence on record to hold that the article, which was recovered from the possession of the accused was opium. In such a state of evidence it vas essential to have produced the evidence relating to sealing of the packets and their conditions remaining intact till the sealed packets reached the Forensic Science Laboratory. As the link evidence was missing, so the learned trial Magistrate was justified in not relying on the report of the Director, Forensic Science Laboratory, Rajasthan, Jaipur. In this view of the matter the order of acquittal, in my opinion, calls for no reference by this Court in appeal.