GHISALAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) -The petitioner was convicted under sections 4/9 of the Opium Act and was sentenced to two yearsT rigorous imprisonment and to pay a fine of Rs. 2,000/- and in default of payment of fine to further undergo three months rigorous imprisonment by the learned Munsif and Judicial Magistrate, Begun by his judgment dated 12-2-78, which was maintained in appeal by the learned Sessions Judge, Pratapgarh by his judgment dated 22-11-1979.

(2.) The prosecution case is that on the direction by the Opium Officer, search of the petitioners house was undertaken by the Opium party and the Police party on 20-6-72 at about 6:20 a.m. no contraband articles were found in the house. However, search of his BaraT was also undertaken. There was one apartment in the Bara, which was bolted from outside and fodder was lying inside the Bara. On search one bundle wrapped in a white cloth was found beneath the fooder. From the smell and taste, it was found that it was opium. Sample of opium was taken. It was found packed and sealed and sent for Chemical examination. On examination, it was revealed that the sample was of opium containing 9.3O0!o Morphins, Thereafter, challan was put up. The petitioner pleaded not guilty and claimed to he tried. The prosecution examined P.W. 1 Prem. Narain (Inspector of Opium; Chittorgarh), P.W. 2 Sultan Singh, P.W. 3 Devilal (motbir), P.W. 4 Vishnu Dutt, P.W. 5 Himmat Singh. A.S.I. Police Station, Begun, P.W.6 Ramesh Chandra, Asstt. Director Forensic Laboratories, Rajasthan, Jaipur. The statement of the accused was recorded in which he denied the prosecution case. He stated that the place from where the opium was recovered does not belong to him. He examined Kanhaiya Lal in defence, who stated that Bara belongs to him. Both the courts found that the opium was found in the possession of the petitioner and on that basis the petitioner was convicted and sentenced as aforesaid. The learned counsel for the petitioner submitted that the Bara does not belong to the petitioner and the Bara is of Kanhaiya lal. P.W. 3 Devilal Motbir stated so. Others had no personal knowledge about the ownership and possession of the Bara. The courts below erred in finding that the bara was owned and possessed by the petitioner. In the alternative, it is submitted that even if, it is found that the Bara is of the petitioner, still the apartment of the Bara was not locked nor the Bara itself was locked, so the Bara was accessible to all. The apartment of the Bara was simply bolted from outside but as the same was not locked implanting of the bag of the opium cannot be ruled out and no conscious possession of the bundle of opium can be attributed to the petitioner. He also submitted that a complete link of evidence has not been produced by the prosecution to prove that the sample sent for Chemical examination remained intact right from the time, it was seized and sealed till it reached in the hands of the Chemical Examiner. Only Vishnu Dutt has been examined, who has stated that he took the sample to the S.P Office, Chittorgarh. The packet was a sealed condition. From his evidence, it cannot be taken that prior to delivery to Vishnu Dutt of the packet of the sample, the sample remained intact and after delivery by him to the S.P. Officer the sample remained intact till it reach ed in the hands of the Chemical Examiner. This evidence is lacking in this case, so, froth such evidence, it should not be found that the article recovered from the TBaraT was opium.

(3.) I have considered the above submissions of the learned counsel for, the petitioner. As regards the ownership and possession of the Bara, it may be stated that the Panchnama bears the signatures of the petitioner. If the Bara did not belong to him, he ought to have objected and he should not have proceeded in connection with the search of the Bara. Besides that, there is evidence on record that the petitioner himself admitted that the Bara belongs to him. However, I find force in the other submission of the learned counsel. The possibility of implanting of the bundle cannot be ruled out as the Bara and the apartments were open and were not locked and anyone could place the bundle beneath the fodder. Such being the possibility, no conscious possession can be attributed to the petitioner and as such the petitioner can not be held guilty of the offence under Sections 4/9 of the Opium Act, I seen not consider the other submission regarding lack of link evidence. As the possibility of implanting of bundle cannot be ruled out, so, the petitioner deserves to be acquitted.