STATE OF RAJASTHAN Vs. PREM SINGH

JUDGEMENT

(1.) This Criminal Leave to Appeal u/s 378(i) & (iii) Cr.P.C. has been directed against the judgment dated 7.12.1987 passed by the learned Munsif and Judicial Magistrate First Class, Kumbhalgarh in Criminal Case No.100/82 whereby he has acquitted the accused for the alleged commission of offence u/s 4/9 of the Opium Act (for short the Act hereinafter).

(2.) The prosecution story in brief is that on 27th May, 1982 Devilal, Sub-Inpector, Narcotics Bureau, Chittorgarh inspected the Bus No.RRM 9568 and having developed suspicion in his mind, inquired the name of the accused who told his name Prem Singh. A bag was lying near his feet. It was taken in possession and upon search, two packets containing opium were found and on being weighed it was found 2.600 kgs. On spot, the Recovery Memo was prepared. Out of these two packets, 30 gms. of opium was taken out as sample for sending to the Forensic Science Laboratory for analysis. The remaining contraband substance was sealed separately. The F.I.R. was lodged with the concerned Police Station. The other formalities were observed and the challan was presented against the appellant for alleged commission of offence u/s 4/9 of the Act. The accused pleaded not guilty to the charge and was put to trial. The prosecution led the evidence except Abhay Singh, Conductor of the bus, who has been cited as eye-witness. On appreciation of the evidence led by the prosecution, the trial Court has come to the conclusion that the prosecution has failed to prove the Recovery Memo against the accused and acquitted the accusedrespondent.

(3.) The appellant has challenged the judgment under appeal on the ground that the trial Court has not legally appreciated the prosecution evidence and the prosecution has discharged its onus of proving the recovery memo. Further, the contraband substance recovered from the possession of the accused has also been sent to the F.S.L. which has reported that the contraband substance is opium having 5.24% morphine. The finding of the trial Court according to the prosecution are erroneous and deserve to be set aside. Heard learned counsel for the parties and perused the record.