STATE Vs. RAMA

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned Sub Divisional Magistrate. Bhinmal, dated 3 -8 -71 by which he acquitted respondent Rama of the offence under Section 9 of the Opium Act, 1878.

(2.) THE Excise Inspector, Bhinmal Khanu Singh PW 6 raided the village Bhutal and intercepted accused Rama. Upon making a search of his person, 15 1/2 tolas of opium covered in a plastic paper was recovered from his pocket. This happended on 23 -2 -66. He took a sample of 2 1/2 tolas and then lodged a report with the police station Sachore. The investigation officer registered a case and forwarded the sample through the Superintendent of Police Jalore for chemical examination and the case was simultaneously challaned in the Court of the said Magistrate.

(3.) THE learned Magistrate thus, held that the witnesses of the search, namely, Chain singh PW 1 and Bhikh Singh PW 2 did not support the prosecution. Chain Singh deposed that he did not see any opium being recovered from the person of the accused but he saw opium in a piece of cloth. The memo Ex. P/9 did bear his signature but the contents thereof were not read over to him. Bhik Singh PW 2 deposed that Khanu Singh had the opium in his hand and he said that he had recovered it from the person of accused Rama. On the basis of the evidence, the learned Magistrate accepted the theory of the defence as disclosed by the statement of Bagta DW 1. This witness had stated that one Mohabata was his real brother who is now dead. Rama accused had come to meet him and he was taking tea when four five persons of the checking party came to the house of Mohabata. They searched his house, Rama also came there. Ram3 requested the members of the checking party to let the poor Bishnoi go, Thereupon, they asked what business he had to intervene and arrested him along with Mohabata No opium was found on the person of Rama. The learned Magistrate argued hat the evidence of Bagta was reliable because no person will involve his own brother in the crime and the very fact that he was saying that the opium was found in the house of his brother, lent truth to his statement. The learned Magistrate then, concluded, that no case was made out against the accused Rama.