STATE OF RAJASTHAN Vs. RAM KARAN

JUDGEMENT

(1.) THIS appeal has been filed by the State under Section 378(1) of the Cede of Criminal Procedure, 1977 against the judgment dated 30th May, 1977, passed by the Munsiff and Judicial Magistrate, 1st Class, Bhadra, in Cr. Case No. 1065/74, whereby the respondent Ramkaran was acquitted of the charge under Section 16/54(d) of the Rajasthan Excise Act.

(2.) THE case of the prosecution is that on 7th May, 1974 Madanlal, Excise Inspector, Mundaria made a search of the house of the respondent in village Mundaria and during the course of said search two pitchers (earthen pots) full of 'lahan' were found concealed in the badha (outer compound wall) of the house and the sample of the said 'lahan', on analysis, Was found to contain alcohol. The prosecution in support bf its case, examinee Madan lal (PW. 1), the Excise Inspector who conducted the seared and made the recovery, Balaram (PW. 2) the attesting witness to the recovery memo (Ex. P.2) and Jassu Khafl (PW. 3) the guard in the Excise' Department and who had accompanied Madan Lal to the house of the respondent at the time of the search. Balaram (PW. 2) did not support the prosecution case and he was declared hostile. Thus the prosecution case depends upon the evidence of Madan Lal (PW/1) and Jassu Khan (PW/3) and the documents, viz. memo of information (Ex. P.1) Recovery Memo (Ex. P.2), Site Plan (Ex. P.3), Memo of Arrest (Ex. P.4) end the report of the Chemical Examiner and Public Analyst (Ex. P.5).

(3.) THE Munsiff and Judicial Magistrate in his judgment aforesaid has believed the testimony of Madan Lal (PW/1) and Jassu Khan (PW/3) and has found that two pitchers containing 'lahan' were recovered from the house of the accused. The Judicial Magistrate has disbelieved the evidence of Kashiram DW/1. Having found that the pitchers containing 'lahan' were recovered from the house of the petitioner, the Judicial Magistrate held that neither PW/1 nor PW/3 had, deposed with regard to the seal which was put on the sample of the Lahan which was taken out of the said pitchers that the prosecution had failed, to adduce evidence about the person who had carried the said sample for chemical examination to Jaipur and that the prosecution had also failed to prove that the seal had remained intact till then and that in the absence of the aforesaid evidence, it was not established that the lahan which was found in the pitchers recovered from the housed of the accused contained alcohol On that view, the Judicial Magistrate acquitted the respondent Ramkaran.