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   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1284 OF 2003

STATE OF RAJASTHAN …APPELLANT

VERSUS

DULICHAND …RESPONDENT

O R D E R

The respondent-Dulichand, was convicted under Section 8  

read  with  Section  18  of  the  Narcotic  Drugs  and  

Psychotropic Substances Act, 1985 (hereinafter referred  

to  as  ‘the  Act’)  and  sentenced  to  undergo  10  years  

rigorous  imprisonment  with  a  fine  of  Rs.1,00,000/-  

(Rupees One lakh only), in default whereof, to undergo  

further  imprisonment  for  one  year,  by  the  Special  

Judge, Jhalawar in the State of Rajasthan.

This conviction and sentence was challenged by  

the accused by way of an appeal in the High Court and  

the High Court has vide its judgment dated 7th January  

2002 allowed the appeal, set aside the judgment of the  

Special Judge and acquitted the accused.  The State of  

Rajasthan is before us by way of special leave.

We have heard the learned counsel for the parties  

and gone through the record.  We find that two primary  

reasons which weighed with the High Court in acquitting

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the accused-respondent were:-

(i) that there was no evidence to suggest that he  was  in  conscious  possession  of  the  narcotic  substance; and  

(ii) it appeared that the opium, after recovery, had  not been kept in safe custody even as per the  prosecution story itself.

We see from the judgment of the High Court that  

the observations are fully justified in so far as the  

evidence  is concerned.   It  is the  conceded position  

that the house from where the narcotic substance had  

been recovered belongs to Bharmal, the father of the  

respondent, and that the house consisted of four rooms  

and the narcotic substance had been recovered from the  

fourth room which was said to be in possession of the  

respondent.   We, however, see from the judgment that  

the opium had been recovered at point ‘K’ which was at  

a distance of 40 feet from Dulichand’s room and the  

finding on this aspect is that the part of the house  

around  point  ‘K’  was  being  used  by  all  the  family  

members  as  a  way  of  coming  and  going  and  was  not  

accessible only to the respondent.  We have also gone  

through the evidence of P.W.3 – Raghunath Pandey, P.W.7  

–  Prabhu Dayal,  the last  named, an  official witness  

from the Department and a member of the checking party,  

who went so far as to state that he was not aware as to  

the place from where the narcotic substance had been  

recovered and did not even know that the room belonged  

to the respondent, and finally, P.W. 4 – Bhuwana, one

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of  the  recovery  witnesses  who  along  with  P.W.  6  –  

Bharmal,  the  father  of  the  respondent  were  declared  

hostile as they did not support the prosecution.  We  

see from a reading of their statements that there is  

nothing to suggest that the respondent was in exclusive  

possession of the room at point ‘K’ where the alleged  

recovery had taken place.

We have also considered deeply the second reason  

advanced  by  the  High  Court.   This  is  based  on  the  

premise that the seal under which the samples had been  

sealed  had  been  tampered  with,  which  destroyed  the  

sanctity of the recovery.  We have gone through the  

evidence  of  P.W.9  –  Bhikam  Chand  Gupta  to  whom  the  

samples  had  been  handed  over  for  safe-keeping   and  

observe  that  he  was  not  the in  charge for the  

Malkhana as the Malkhana was under the charge of the  

District Opium Officer, who has not been produced as a  

witness.  We are of the opinion that the evidence of  

P.W. 2 – Sankta Prasad Choudhary, P.W. 8 – Satyaveer  

Singh and P.W. 9 – Bhikam Chand Gupta to depose on the  

sanctity  of  the  sample,  therefore,  loses  all  

significance.   

We are also cognizant of the fact, that we are  

dealing  with  an  appeal  against  acquittal,  at  the  

instance  of  the  State,  and  interference  in  such  a  

matter must be rare and far between.

We, thus, do not find any merit in this appeal

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which is, accordingly, dismissed.

……………………………J. (HARJIT SINGH BEDI)

…………………………J. (J.M. PANCHAL)

NEW DELHI  AUGUST 11, 2009.