BHAGWAN LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner has challenged his conviction under Section 4 read with 9 of Opium Act and sentence of six months R.I. and a fine of Rs. 100/- or in default one month S.I. recorded by learned Chief Judicial Magistrate, Udaipur vide judgment dated 20-8-1985 and confirmed in appeal by learned Sessions Judge, Udaipur vide judgment dated 26-5-1988.

(2.) The prosecution case is that Shri Dalip Singh Jain, Inspector, Narcotics Department, Chittorgarh with his staff went to village Akodia Kakeda in the morning on 29-8-1980 and searched the house of petitioner Bhagwanlal in the presence of his wife Bhagwani and motbirs Chhaganlal and Varda. 1.400 kg. opium in a plastic packet was recovered from the house in the possession of the petitioner. The opium was kept inside of the fodder stored in the room. Two samples weighing 30 grams each were taken on the spot in a cigarette case and sealed and sent to the chemical examiner for analysis. The chemical examiner reported that article was contraband opium. Challan was submitted against the petitioner and his wife Smt. Bhagwani. The trial was held under Sections 4/9 of the Opium Act and the learned Chief Judl. Magistrate, Udaipur acquitted Smt. Bhagwani but convicted the petitioner that the recovery of the contraband opium was proved beyond reasonable doubt from the conscious and exclusive possession of the petitioner. The learned Chief Judicial Magistrate held that Smt. Bhagwani cannot be convicted simply on the basis of her presence at the time of search and the recovery. The room was in the exclusive possession of the petitioner and the circumstances clearly establish that the petitioner had the knowledge of the opium kept inside of the fodder and in fact it was intentionally concealed by him. Hence the offence under Sections 4/9 of the Opium Act stood proved against him beyond reasonable doubt. The learned Sessions Judge upheld the above findings.

(3.) I have heard the learned counsel for the petitioner and learned Public Prosecutor and perused the judgments of the learned Courts below and also the evidence on record.