GIRDHARI NATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant has filed this appeal under section 374 Cr. P.C. against the order dated 18-7-1996, of the Special Judge (A.D.J.) Jhalawar, Camp Aklera, by which the accused appellant was found guilty of an offence punishable under Section 8 read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act. 1985, ('for short the Act') and sentenced to ten years rigorous imprisonment and a fine of rupees 1,000/- In default of payment of fine, the accused was ordered to undergo rigorous imprisonment for six months. Since the learned counsel for the appellant has argued the, appeal on one point. I am only narrating the essential facts, which are relevant for, appreciating the above argument.

(2.) Nand Lal Rai, P.W.3, alongwith his party went to the house of the accused to conduct a search and after search, recovered opium pots pieces weighing 419 kg. He also found some water boiling in which a few earthen pieces of pot pieces were lying. According to him the accused had collected the above pieces in which of opium were ad-hearing to the above pieces and by boiling the same he was extracting the same in the water. He seized the above articles. Before taking search, Shri Nand Lal Rai, gave statutory notice required under Section 50 of the Act to the appellant that it he desired, the search could be taken before a Gazetted Officer or a Magistrate. The accused expressed his desire to be searched by Shri Nand Lal Rai. Before taking search, Shri Nand Lal Rai also summoned two respectable and independent witnesses. The above pieces were filled in nine bags and he took two samples of one kg. each and sealed the same. The remaining pieces were also sealed. The above articles were deposited in the Malkhana Thereafter he sent the sample to the Government Opium and Alkaloid Works. Neemuch (M.P.) for chemical examination. Vide report Ex-P. 24, the Chemical Examiner opined that each of the two samples answers for opium qualitatively. After, receipt of the report, a Charge-Sheet was filed against the accused. A charge under Section 8 read with Section, 18 was framed against the appellant. The accused appellant pleaded not guilty and claimed to be tried. The prosecution produced in all nine witnesses. The learned Special Judge after appreciating the evidence of the witnesses and taking into consideration the various documents, including the report of the Chemical Examiner, came to the conclusion that the accused was found in possession of earthen process containing opium. He, therefore, convicted and sentenced the accuses stated above.

(3.) Learned counsel for the appellant has assailed conviction and sentence of the accused on the ground that the report of the Chemical Examiner Ex. P. 24, can not be said to have given a positive finding regarding opium in the sample taken by Shri Nand Lal Rai, The report is hardly of my importance. The report does not give the percentage of morphine found in the articles, which are alleged to have been seized or recovered from the house of the accused. If the report of the Chemical Examiner, Ex. P 24 is ignored the whole prosecution case collapses and the accused is entitled to acquittal. In this connection learned counsel referred to the definition of opiumT as given in Section 2(xv) of the Act, which reads as Under: (xv) opium means (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any natural material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 percent of morphine.