STATE Vs. BHANWAR SINGH

JUDGEMENT

(1.) Appeal challenges respondent's acquittal for the offence of Section 4/9 of Opium Act recorded vide judgment dated 29.5.89 in Criminal Case No. 318/88 before the Judicial Magistrate, Pratapgarh. According to prosecution, on 23.11.84 when Excise Inspector PW/4 alongwith Enforcement officer PW/5 and other personnels of Excise department working on the basis of certain information were at road intersection near village Badi Sakhtali. They observed at around 11 AM that from towards Badi Sakhtali a person was coming on cycle and on handle of cycle was a bag having some suspicious article. So the person was asked to stop who leaving cycle and bag ran away who while apprehended at some distance fell down on surface of road sustaining little injury at leg thumb he interrogated before independent witnesses and on search of bag at handle of cycle in it found opium which weighed 5 kg from which two samples of 50 gm each separately sealed and remaining substance separately sealed over mudguard and chain cover of cycle was described (paint written) Trivedi Cycle service, Sujapur that also also seized. Memo of seizure is Ex.P/2 and arrest of accused Ex.P/1. Registering report No. 47/84 at Excise department, Pratapgarh on same day then at 11 PM - FIR Ex.P/8 narrating incident lodged by PW/2 at P.s. Salumgarh where FIR Ex.P/9 was registered. Delivering sample packet intactly at laboratory and after usual investigations, charge-sheet submitted. As per FSL report, the substance was found to be opium having 6.86% morphine.

(2.) Appellant when charged of conscious possession as above mentioned, denied the same.

(3.) Among the prosecution witnesses examined, PW/4 is the Inspector and PW/5 Enforcement Officer with him PW/1, PW/2, PW/3 are said to be independent witnesses who all are declared hostile, whereas, PW/6, 7 and 8 police personnels pertain to delivering sample to laboratory. Appellant explained that he with his brother Ram Singh were coming on cycles and on other cycle also was Pratap Singh - they and other two persons all were stopped by police persons who telling and making those two persons ran away falsely implicating him taken him to Pratapgarh and procured his signatures on papers. In defence are examined brother Ram Singh, an other witness Pratap Singh DW/2, Devi Singh DW/3. Learned Magistrate inferred the case to be doubtful because of the reasons (i) no evidence regarding who procured cycle from shop name of which was scribed on cycle (ii) nothing to show cycle with respondent (iii) hardly can be that leaving cycle ran away if this be so, ought not to have run on road but towards and on agricultural fields there on both sides (iv) no reason of PW/4 and PW/5 being there (v) 5-6 persons of the department also were but none of them in evidence (vi) going to Pratapgarh a distant place and then belatedly lodging report at P.S (vii) no independent witness supports (viii) substantial contradictions regarding two sealed samples allegedly kept in different manner wheras sample taken was only one. Elaborating reasons, giving benefit of doubt, learned trial court acquitted the accused respondent of the charges levelled against him.