STATE OF RAJASTHAN Vs. NARESH KUMAR

JUDGEMENT

(1.) On 5.6.2003, Station House Officer, Police Station Bhimganj Mandi, Kota along with his staff was on patrolling then at about 10.35 A.M. Near the Dak Bungalow a person was found in the bushes and after apprehending him he was asked about his name to which he gave out his name as Naresh Kumar. Looking to his conduct in the presence of two motbirs when he was searched then smack weighing 5 gram 930 mg was found in his possession i.e. from the right side pocket of the pant. Out of the smack so recovered from the possession of the accused respondent, sample of one gram smack took out. The sample and the remaining 4.100 gram smack were sealed separately and the sample was sent for chemical analysis. Accused respondent was arrested. After investigation a challan was filed against accused respondent under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act (for short the N.D.P.S. Act'). On the basis of the material and evidence produced by the prosecution along with the challan, the learned trial Court framed charge against accused respondent under Section 8/21 of the N.D.P.S. Act, to which he denied, pleaded not guilty and claimed trial. To prove its case, the prosecution examined 10 witnesses and also produced some documents. In his statement under Section 313 Cr.P.C. the accused respondent denied the allegations and has deposed that he was falsely implicated in the case with the help of Kareem and Haleem with whom he has enmity in relation to payment of money. One witness was examined in defence and some documents were got exhibited.

(2.) Learned trial Court after hearing both the sides and evaluating the evidence produced by the prosecution, on the basis of difference in the weight of the smack mentioned in the FSL report and the sample taken and also the fact that search of the accused is doubtful as the investigating agency has not summoned independent witnesses before the search and search was not made in the presence of the two independent witnesses, the learned trial Court giving benefit of doubt to the respondent has acquitted the accused respondent of the charge under Section 8/21 of the N.D.P.S. Act vide judgment dated 16.7.2007. Against which judgment, the present leave to appeal has been filed by the State Government.

(3.) The accused respondent was served with a notice but none appeared on his behalf.