BHABDU @ LACCHU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal owes its origin from the judgment dated July 12th, 1996 of the learned Special Judge (N.D.P.S. Act), Alwar, whereby the accused appellant was convicted under section 8/18 of the N.D.RS. Act and sentenced to suffer 10 years 'rigorous imprisonment and fine of Rs. one lac, in default of payment of fine to further undergo 6 months' rigorous imprisonment.

(2.) Brief sequence of the facts is that on 11.12.1993 at about 5.30 p.m. Ram Chandra Joshi, Excise Inspector with Excise Enforcement Force came at Thanagazi Bus Stand and the accused was apprehended. On his search 3 Kg. powder of Doda-post was found in his possession. He was not having the licence. Thereafter, the accused appellant was arrested and investigation commenced. After investigation charge-sheet under Sec. of the N.D.RS. Act (for short 'the Act') was filed. The charges were framed against the accused appellant who denied the charges and claimed trial. The prosecution examined as many as three witnesses and exhibited seven documents. The statements of accused appellant under section 313 Cr.RC. were recorded. Thereafter, learned Court below, after hearing the rival submissions convicted and sentenced the accused appellant as indicated here in above.

(3.) I have reflected over the submissions made by Mr. Akhil Modi, learned counsel appearing for the appellant and have carefully scant the record. According to seizure memo of doda-post, exhibit P1. 200 grams of Doda-post was separated and sample was drawn in a plastic bag to be analysed by F.S.L.. The record of Central Public Health Laboratory Rajasthan, Jaipur. Exhibit P6. does not show the weight of sample of Doda-post. It has only been mentioned in the said report "Article 1 sample of Doda-post." It has not been explained by the prosecution that the sample of Doda-post received by the said Public Health Laboratory was the same sample which was drawn vide Exhibit P1. Therefore, a doubt crept in the mind that the sample which was sent to the Public Health Laboratory by the prosecution was the same sample which was received and examined vide exhibit P6. There is yet another infirmity in the prosecution case. PW1. Pooran Mai deposed in his cross examination that excise party including him reached at Thanagazi at about 11 a.m. and the accused appellant met them at 11.50 a.m. and at that time the accused appellant was searched. Similarly, Ashok Kumar Sharma, PW 2 deposed that he reached at the spot at 11 am and at that time the accused appellant was searched, whereas Seizure Memo. Exhibit P1 was prepared on 11.12.1993 at about 5.30 pm and the accused appellant was arrested at 6 pm vide exhibit P3. In the statement under Sec. 313 Crimial P.C. the learned court below did not mention the time of occurrence and the accused appellant was asked to explain as to whether he was searched on 11.12.1993. So, the prosecution has failed to establish the time of occurrence. In view of what has been discussed above, the prosecution has failed the prove the offence under Sec. 8/18 of the Act beyond reasonable doubt against the accused appellant. Resultantly, the appeal stands allowed. The conviction and sentence of the accused appellant under Sec. 8/18 of N.D.RS. Act stands set-aside and the accused appellant stands acquitted from the charge under Sec. 8/18. If he is in judicial custody, he shall be released forthwith. The record of the case be sent back immediately.