HARCHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment passed by the learned Sessions Judge, Jalore in Sessions Case No. 28/87 on 26. 11. 1987 whereby the learned trial Judge has convicted the appellant for committing offence under Section 8/18, Narcotic Drugs &psychotropic Substances Act, 1985 (in short, "the Act" hereinafter) and sentenced him to undergo rigorous imprisonment for 10 years and pay a fine of Rs. 1,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for one year.

(2.) AS per the facts of the case, PW. 1 Guman Singh, A. S. I. , Police Station Chitalwana received information through informer that some person is carrying opium on the camel going to Barmer from the side of village Sangrawa. Upon that information, PW. 1 Guman Singh, A. S. I. Alongwith Head Constable Jalam Singh and other Constables Mangal Singh, Nathu Singh, Harlal and Lakha Ram went towards the way from Sangrawa to Barmer. AS per the prosecution story, after some time, they saw a stranger ridding a camel who turned back on seeing the police party, they stopped him and asked him about his whereabouts. The stranger told them his name to be Harchand Jat, resident of village Sisawa. It is stated that at the camel-saddle a green coloured raxin bag was hanging in which, upon opening, two bags were found. In one bag of white colour, 2. 200 kg of opium milk was found and in one green coloured bag 2 kg of opium milk was found. A sample of 30 gm was taken from each bag and rest of the material was separately sealed. After aforesaid recovery, FIR was registered and investigation commenced for offence under Section 8/18 of the Act. After investigation, challan was filed by the S. H. O. , Police Station Chitalwana before Munsiff and Judl. Magistrate, Sanchore who committed the case to the Sessions Judge, Jalore. After trial, the learned trial Judge found the appellant guilty for committing offence under Section 8/18 of the Act and convicted him accordingly. The appellant was sentenced as noted above.

(3.) LEARNED counsel for the appellant further argued that the prosecution has failed to prove the recovery memo which is said to be prepared at the time of the search. It is contended by learned counsel for the appellant that, in all, out of 10 witnesses arrayed in the list of witnesses filed alongwith the challan before the Court, statements of 5 witnesses were recorded before the Court namely, PW. 1 Guman Singh, A. S. I. , PW. 2 Narayan Singh, Constable, P. S. Chitalwana who gave evidence for depositing the samples at the office of the F. S. L. , PW. 3 Bhura Ram, motbir witness to the recovery memo who turned hostile before the Court, PW. 4 Jalam Singh, Head Constable who is said to be one of the members of the police party and is malkhana in- charge, P. S. Chitalwana to whom the sealed packet of opium was handed; and, PW. 5 Mohammed Ramzan, motbir witness to the recovery memo who also turned hostile before the Court; meaning thereby, to corroborate the entire prosecution case only statements of PW. 1 Guman Singh, A. S. I. who was the complainant as well as investigating officer and PW. 4 Jalam Singh, one of the members of the police party and in-charge of the malkhana were recorded. He contended that as per the prosecution case and statements of PW. 1 Guman Singh and PW. 4 Jalam Singh, in all, six persons were in the police party at the time of the alleged recovery viz. , constables Mangal Singh, Nathu Singh, Harlal, Lakharam, Head Constable Jalam Singh and A. S. I. Guman Singh; but, the prosecution did not produce Mangal Singh, Nathu Singh, Harlal and Lakharam before the Court; likewise; as per statement of PW. 1 Guman Singh, after completing the investigation and taking statements of the witnesses, he handed over the file to the Station House Officer, but the S. H. O. to whom the file is said to have been handed over and who filed the challan was not produced before the Court though he was arrayed as witness in the list of witnesses. It is also contended that as per major contradictions in the statements of PW. 1 Guman Singh and PW. 4 Jalam Singh with regard to preparing the recovery memo, it is clear that the prosecution has concocted the story and has failed to prove the case beyond reasonable doubt.