STATE OF RAJASTHAN Vs. MIYA RAM @BHIYA RAM

JUDGEMENT

(1.) This appeal has been filed by the State against the judgment and order dated 17.9.1987 passed by learned Munsif and Judicial Magistrate, First Class, Dungla, District Chittorgarh in Criminal Case No.66/1978, whereby the accused respondent has been acquitted of the charge under Sec. 4/9 of the Opium Act.

(2.) The leave to appeal was granted against the accused respondent on 29.7.1988.

(3.) It has been contended by learned Public Prosecutor that near about 3 Kgs. Of Opium was recovered from the accused persons and one of accused Chokharam had made confessional statement and he was punished accordingly. But since the present accused respondent did not plead guilty, therefore, he was tried for the offence under Sec. 4/9 of the Opium Act. According to the learned counsel, the recovery from the accused has been proved, therefore, it should be presumed that it was only the accused who was liable to be punished in view of the fact that opium so recovered from the possession of the accused was sent for chemical examination in due course of the time and the prosecution evidence amply proved the case of the guilt of the accused. Learned counsel has further submitted that material discrepancies will not entitle the accused to be acquitted of the charge. He further contended that there is always a presumption that article remain in the custody of the police is in safe possession and that it remained intact and sealed.