STATE OF RAJASTHAN Vs. MUSARAF

JUDGEMENT

(1.) State of Rajasthan has preferred this appeal against the order dated November 4, 1997 of Additional Sessions Judge, Baran (Raj.) in Criminal Case No. 28 of 1987 by which the accused respondents were acquitted for the offence under Sections 8/18 of the NDPS Act, 1985.

(2.) Brief facts of the case are that on September 16, 1986 Surendra Prasad Sharma, inspector Narcotics Department, Control Room Neemach (MP) lodged a written fir at District Opium officer Kota to the effect that on September 14, 1986 when he along with Preventive Party while on patrolling form Baran to Bamla Road a Jeep No. UHF 8085 was coming from Bamala to Baran, accused respondent Musaraf was driving that jeep and accused Parasram was sitting near him. On searching jeep three begs of Opium weighing 176 Kg. were recovered from the jeep. The recovered opium was weighed in presence of two witnesses Chothmal and Jagannath. On this report District Opium Officer, Kota appointed Dharamvir inspector to investigate the matter, who after investigation filed a challan against these two accused persons under Section 8/18 of the NDPS Act. The case was tried before the Additional Sessions Judge Baran. The trial court framed charge against the accused respondents for the aforesaid offences. The offences were read over and explained to the accused persons and they denied the same and claimed for trial. The prosecution in support of its case examined 9 witnesses. The statements of accused respondents under Section 313 Cr.P.C. were recorded. After hearing arguments the accused respondents were acquitted for the offences charged against them. Against this order of acquittal the State preferred leave to appeal and after leave was granted the same was registered as appeal and hence this appeal.

(3.) The learned Public Prosecutor contended that the trial court has not appreciated the prosecution witnesses in a proper manner. According to him prosecution witnesses PW.1 Kamlesh Kumar, PW.4 Lal Chand Driver, PW.5 Surendra Prasad Sharma, PW.6 Mohd. Isakh and PW.7 Dinesh Kumar, all the witnesses have proved that both the accused respondents were caught red handed and 176 Kg. Opium was recovered from them, and the same was sealed and the sealed opium was examined and the result of examination was that the sample was found to be opium, on September 14, 1986 the day on which the accused were caught red handed along with 176 Kg. Opium from both the accused respondents, PW.5 Surendra Prasad Sharma, admitted of having opium in their jeep No. UHF 8085 and got recovered from them. The learned Public Prosecutor further contended that the trial court has not considered the provisions of Section 54 of the NDPS Act which clearly lays down that in case opium is recovered from the accused and if satisfactory explanation is given or rendered by them, then there will be presumption to the effect that accused have committed an offence under Section 54 of the NDPS Act. Hence the order of acquittal passed by the trial court be set aside and the accused respondents should be convicted.