STATE OF RAJASTHAN Vs. HARLAL

JUDGEMENT

(1.) This criminal appeal has been preferred under Section 378 (1) Cr.P.C. against the judgment and order dated 7.3.1983 passed by learned Judicial Magistrate, Siwana in Cr. Case No. 121/1980 whereby he has acquitted the accused of the alleged commission of the charge under Section 9 of the Opium Act.

(2.) The prosecution story is that on 26.4.1977, the S.H.O., Police Station, Samdari, Tapaswi Lal alongwith two Constables, namely, Nawal Kishore and Moti Singh were on "Gast" duty. At about 9.00 p.m., they reached at Village Moja Majal. Two passengers belonging to Vishnoi community were suspected and one of them was called. On query, the said person told that he was going to Village Kotdi. He disclosed his name as Harlal and was carrying a packet in his hand. The SHO asked him what is contained in this packet. He told that it is some material. In the meantime, Constable Moti Singh and another person reached there. Har Lal ran away alongwith packet. He was chased and caught by all these three persons. He was searched in the presence of Ram Singh, Ghishu Lal and Deva Ram and on search it was found that the packet contained opium which on measurement was found to be 1 kg. 600 grams. Out of the opium recovered, 35 grams of opium was taken out as sample and was sealed in a separate packet. The accused was found with one more piece of opium which was also sealed separately.

(3.) The accused was arrested; Recovery memo was prepared; FIR was prepared and sent to police station, Samdari. On the basis of this, FIR was lodged and report was sent back to SHO. On spot, he started investigation. He collected the other evidence and presented challan. During trial, the prosecution recorded statements of 10 witnesses under Sec. 161 Cr.P.C. Out of these prosecution witnesses to prove the guilt, the prosecution has produced PW-6 SHO Tapaswi Lal, Constables PW-1 Nawal Kishore, PW-2 Motbira Deva and PW-3 Rama, Constables PW- 4 Pratap Singh, PW-5 Har Lal Singh and PW-7 Shankar Singh before the trial court. Ram Singh and Ghishu Lal, independent witnesses, have not been produced. The constable Moti Lal, who chased the accused and caught hold alongwith Nawal Kishore though cited as prosecution witness, was also not produced.