Judgment:
C.M. Totla, J.
1. Preferring this appeal, prosecution requests that setting aside the judgment of the trial Court dt. 3.4.87 acquitting respondent of the offence of Section 9, Opium Act, the respondent be convicted and appropriately punished for the offence.
2. Heard learned Public Prosecutor and learned Counsel for the respondent.
3. According to prosecution, on 07.10.1981, SHO PW 8 at Chowki of PS, informed by informer that a person wearing a white shirt ('kameez'), white Dhoti, pink coloured baniyan and having old nylon chappals in feet, travelling in Phalodi to Bikaner Bus, is having opium in green bag of canvas-the SHO making entry Ex. P3 in rojnamcha along with Head Constable PW 6 and constables quickly reached at bus stand, from where as bus had just left, so he following in a jeep near power house, the bus was stopped-on search found that on a seat of the bus a person resembling above, was sitting, with a bag on his thighs-on search in a polythene bag found about 3 quarter kilo opium-from which the same was seized and separately sample of 30 gms sealed preparing memo Ex.P-1 also affixing impressions of the seal used - appellant enquired about his name, address etc. and conductor informed the person to have boarded the bus from Khetra purchasing ticket for Bikaner-the accused, who is respondent arrested and on his search found bus ticket and Rs. 150/- seized. SHO making entry of entire incident in roznamcha of chowki and than reaching PS and on the basis of entry and his own report, registered FIR No. 55/81 Ex.P-5 for the offence of Section 9, Opium Act. Keeping the packets safe, the packet of sample was forwarded to Laboratory for examination. After investigation, charge-sheet submitted in Magisterial Court and Criminal Case No. 81/1981 was registered.
4. Appellant charged for the offence of Section 9, Opium Act that in his possession and illegally on 07.10.1981 at around 2.30 p.m. in a bus at town Kolayat, found 3 quarter kilo of opium-appellant claimed trial.
5. On behalf of the prosecution examined are SHO PW 8 who is also the seizure officer-Surja Ram PW 6 Head Constable, Constables Virendra Singh PW 5, Phoola Ram PW 3 who accompanied SHO, Panney Singh PW 1 Driver and Jagdish PW 2 conductor of the bus who are declared hostile-Mallu Ram PW 7 Head Constable Malkhana Incharge and Constable Bahadur Singh PW 2 regarding keeping packets safe and delivering the sample packet at laboratory. Appellant in his explanation stated that witnesses are telling lie and he is innocent. Learned Magistrate, arriving at conclusion, that independent witnesses either conductor or driver do not support prosecution - how the SHO and other personnels reached there, highly inconsistent and not is proved that the sample of packet remained in intact sealed position till delivering at Laboratory, acquitted appellant.
6. Learned Public Prosecutor argued that SHO deposited packets with Malkhana Incharge Head Constable PW 7 who in turn intactly delivered to Constable PW 4 who deposited the said packet at Laboratory, so the conclusions of the trial Magistrate are erroneous. Also argued that as per evidence produced SHO traveling in a jeep followed and stopped the bus and the said contradictions, if any, too minor and trifling as to be of any significance. Argued that of the 'motbirs' are signatures on the memo and proved that in possession of appellant was opium.
7. Learned Counsel for the respondent argued that quite inconsistent and contrary to each other are the statements of witnesses and the learned Magistrate elaborately dealing with the matter for convincing and strong reasons, has arrived at conclusion. Argued that since depositing sample in the same intact position, is not proved the appellant is rightly acquitted. Also submitted that the incident is said to be of 1981.
8. Considering arguments, perused record and judgment of the trial Court.
9. PW 1 driver and PW 2 conductor of the bus do not support prosecution-as per them policemen came in the bus, forced a person to alight and also took out a small bag through window of the bus-at police station, signatures of these witnesses procured on Exs. P-1 an P-2. Inference on testimony of these witnesses can be that the accused was traveling in the bus. Signatures of the witnesses on memos can be corroborator of the what described in the memos if appear to have been proved by other evidence.
10. Chhagan Lal PW 8 states that he being SHO was at Kolayat Chowki of police station where a informer informed him that a person wearing white shirt, dhoti, pink baniyan and old chappals of of nylon possessing opium in green bag is travelling in bus from Phalodi to Bikaner, now standing at Kolayat bus stand, so he (the SHO) along with head constable Surja Ram and constables Phula ram, Vidrendra Singh arrived at bus stand and as the bus has just departed, so followed in a private jeep and bus stopped by them near power house-on search in the bus on back seat was a person of above description with bag on his thighs which when searched found to contained 750 gms of opium in a polythene bag from which sample etc. taken and sealed, inquiring about name etc. of person the accused, prepared memos. PW 8 states that arriving at police station, recording incident registered FIR Ex.P-5 and in course of investigation, recorded statements of witnesses-further says that appellant also gave a information which reduced in writing as Ex.P-6 by him- it seems that no recovery made or action followed on this information. SHO PW 8 states that entry made while departing from
11. Chowki is Ex.P-7 and of return is Ex.P-8-in cross-examination says information was received at 2.15 and Ex.P-7 entry made at 2.30-he followed bus travelling in a jeep of a contract and head constable on motor cycle was with him up to bus stand. As per PW 8, he did not deem it necessary to obtain signatures of constables who were with him on memo of recovery Ex.P-1 and recovered substance not actually on the spot and only estimated. Surja Ram PW 6 the head constable states that on site plan memo Ex.P-2 are his signatures-but his signatures strangely are not on memo of recovery Ex.P-1. According to PW 6, he followed bus riding on a motor cycle and pillion rider was the SHO. Thus, the SHO accompanied on motor cycle of this witness PW 6 and this is to be evaluated with the fact that Ex.P-1 does not bear signature of this witness and as per PW 8, he was in a jeep. According to PW 6, Ex.P-2 was prepared right at the spot where bus was stalled. Constable Virendra Singh PW 5 who accompanied SHO narrates that SHO searching respondent the passenger of the bus, found in his custody a green bag, which had opium in a polythene bag-in cross-examination says that he too signed on the memo but memo Ex.P-1 does not seem to have his signatures. Similar is for Constable Phoola Ram PW 3 who states of search and seizure as above, but admits of his signatures not being on memo Ex.P-1. This constable PW 3, in cross-examination, tells that no jeep was, and bus followed on motor cycle by the SHO-confronted with investigational statement Ex.D-1 that private vehicle was used, the witness denied the same. PW 3 also says that bus was to its capacity. As above, the versions narrated are of major inconsistencies, so the conclusions of the learned Magistrate cannot be held to be erroneous and contrary to evidence.
12. From the evidence, it appears that SHO deposited the articles with Malkhana In-charge head constable Mallu Ram PW 7 on 7.10.81 itself. Mallu Ram PW 7 states so but does not state any thing regarding delivering or giving of any part to any one. Constable Bahadur Singh PW 4 deposed that he in November, 1981 was posted as constable and carrying sealed packet of FIR No. 55/1981, deposited it at Jaipur, obtained receipt which handed over by him at police station-does not state anything about by whom and when the packet was given Mallu Ram PW 7 does not state if given to any one and when. Thus, the conclusions that when and by whom the packet given and for what period remained with the concerned person not established cannot be held to be erroneous or not based or contrary to evidence.
For the above reasons, the appeal being devoid of merit is to be rejected. Accordingly, the appeal is rejected.