2009(9) SCR 621 STATE OF RAJASTHAN

v. BHIYA RAM

(Criminal Appeal No. 1325 of 2004) MAY 5, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J.1. In this appeal challenge is to the  order of the learned single Judge of the Rajasthan High Court at  

Jodhpur  directing  acquittal  of  the  respondent  who was tried  for  

allegedly  committing  offence  punishable  under  Sections  8/18  of  

the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short  

the N.D.P.S.  Act)  The learned Special  Judge,  NDPS found him  

guilty and sentenced him to undergo imprisonment for 10 years  

and to pay a fine of Rs.1 lac and on account of non payment of  

fine, additional rigorous imprisonment for one year was awarded.  

2. The prosecution version as unfolded during the trial was that  

the SHO, P.S. Modara, District Jalore, Gopal Ramawat (PW-5) on  

22.4.2001 was conducting routine checking of the vehicles on the  

road near village Ramseen. In the evening, allegedly, Bhiya Ram  

and Prahlad  Ram came riding  on a  motor-cycle,  which  had no  

number plate and when the same was signaled to stop, they did  

not stop. They were chased by the police jeep and ultimately the  

motor cycle was stopped. According to the prosecution, the motor  

cycle was searched and large quantity of opium was seized. Both  

were arrested. A case under Section 8/18 of the NDPS Act was  

registered. The samples which were taken on the spot were sent  

for chemical examination. As per the chemical examination report

(Exh.P/27)  the  material  sent  for  examination  was  found  to  be  

opium containing Morphine.  Hence,  both  were challaned before  

the said court. Both pleaded not guilty. The prosecution examined  

12 witnesses. DW-1 Jagdish was examined in defence. He stated  

that during the relevant time both the accused persons were at his  

house attending the betrothal ceremony of his daughter, Rekha,  

and  the  motor  cycle  belonging  to  Bhiya  Ram  was  stolen  by  

somebody and on the next day during the search, they found that  

the motor cycle was lying in the police out-post at Ramseen. In this  

way according to the defence version both were implicated falsely.

3.The Trial Court acquitted accused Prahlad Ram while finding  

the present respondent guilty. He filed in appeal before the High  

Court. The stand taken by the accused before the Trial Court and  

the  High  Court  was  that  the  samples  which  were  allegedly  

collected at the time of recovery on 22.4.2001 did not reach the  

FSL Jaipur intact and on that score alone the accused was entitled  

to  acquittal.  The  Trial  Court  held  that  accusations  were  

established. The prosecution version clearly shows that the seals  

were intact when the articles for examination were received by the  

FSL in the manner in which the articles were first put in polythene  

bags and then put in plastic bags. The Trial Court did not find any  

substance that the samples collected did not reach the FSL, Jaipur  

in the same form as were collected. The High Court, however, held  

that there was non compliance with the requirement of Sections 55  

of the Act and the evidence of PW-1 and PW-11 clearly show that  

the requisite procedures were not followed. Accordingly, acquittal  

was directed.

4. In support of the appeal, learned counsel for the appellant  

submitted  that  the  High Court  should  not  have picked up stray  

sentences from the evidence to hold accused not guilty. The effect  

of the fact that the seals were intact when received by the FSL,  

Jaipur has not been considered. The judgment of the High Court is  

very cryptic. The well reasoned order of the Trial Court should not  

have been subsided by the High Court. Learned counsel for the  

appellant stated that the judgment of the High Court is cryptic and  

there is hardly any analysis of the evidence.

5. Learned counsel for the respondent supported the judgment  

of the High Court.

6. The effect of the samples reaching with the seals intact has  

been considered by this Court in a large number of cases, e.g. in  

Hardip Singh versus State of Punjab reported in 2008 (8) SCC 557  

and Criminal Appeal No.18 of 2003 decided on 28th April, 2009.  

7. We set aside the impugned judgment and remit the matter  

to the High Court to reconsider the matter in accordance with law.  

This course is being adopted as the impugned order is bereft of  

discussion and reasoning.

8. The appeal is allowed to the aforesaid extent.