STATE OF RAJASTHAN Vs. GORDHAN

JUDGEMENT

(1.) This is a State appeal against the judgment of acquittal dated 26.2.71, whereby the learned First Class Maqistrate, Barmer, acquitted the respondent Gordhan of the charges under Sec. 14 of the Foreigners Act, Rule 3/6 of the Pasa Port Rules and Sec. 13(A) of the Dangerous Drugs Act.

(2.) On the night intervening between 24th and 25th June, 1968, the B.S.F., party headed by Kunwar Singh Rana laid an ambush near Pillar No. 815/3 within 300 to 400 yards on the Indian side and arrested the accused, who according to the prosecution, was coming from Pakistan and bringing contra-band articles 'charas' and also terylene cloth. The sample of 'charges' was taken by Mr. Rana (PW. 3) and thereafter the S. H.O. of the Police Station, Girab, who investigated the matter, also took the sample of the 'charas' seized by Mr. Rana, before the Third Class Magistrate, and the simples, were sealed and the seal of the Court of the Third Class Magistrate was affixed One of these samples was sent for chemical analysis to Jaipur and the report of the Chemical Examiner Ex. 4 shows that the sample was that of charas'.

(3.) After investigation the respondent Gordhan was challaned in the Court of First Class Magistrate, Banner, under Sec. 14 of the Foreigner Act, under Rule 3/6 of the Pass Port Rules and under Sec. 13(A) of the Dangerous Drugs Act. The learned Magistrate acquitted the accused of the charge under Sec. 13(A) of the Dangerous Drugs Act on the ground that the prosecution failed to prove that the same specimen which was taken from the article the alleged 'charas' seized from the possession of the accused was sent for chemical analysis. The accused was also acquitted of the charge under Sec. 14 of the Foreigners Act on the ground that accused Gordhan was facing a trial on the day when he was caught by the B.S.F. party in the Court of Sub-Divisional Magistrate, Barmer, for a charge under Sec. 14 of the Foreigners Act and he was bailed out and, therefore, he had a right to stay in India under the orders of that Court. As regards charge under Rule 3/6 of the Pass Port Rules, the learned trial court held that P.W. 3 Shri Kunwar Singh Rana and P.W. 8 Ramesh Chandra, who were responsible for arresting the accused, did not state that they had seen the accused crossing the border of Pakistan and entering into India and, therefore, under those circumstances the accused was not liable for violating the provisions of Rule 8/6 of the said rules.