Judgment:
O.P. Bishnoi, J.
1. This appeal has been filed by Salag Ram Bairagi against the judgment dated 5-5-98 delivered by the Sessions Judge, Pratapgarh in the capacity of Special Judge, NDPS Cases.
2. According to the prosecution story on 13-8-95 the SHO, Police Station, Arnod, Dist. Chittorgarh, received a secret informa-tion to the effect that the accused-appellant Salag Ram and his associates were likely to return after purchase of opium from Pushkar Ram. The information was recorded by the SHO and thereafter he proceeded to the place situate at Mandawara-Dewaldi Road during the 'Nakabandi' the appellant along with Ismile alias Poona came on a motor-cycle at about 3 p.m. The police party signalled the motor-cycle to stop but it did not stop and during the chase Ismile was able to make his escape good whereas the appellant-Salag Ram was nabbed. He was told about the secret information and was given the option of his search in the presence of a Magistrate or a Gazetted Officer but he opted for the search by the police. He was carrying a bag in his hand which contained opium weighing 2 Kg. and the same was recovered. Two samples of 30 gms. each were separated and sealed on the spot. The recovery memo and other documents were prepared. The accused-Salag Ram was arrested, who disclosed that they had purchased the opium in question from Pushkar Ram. During the investigation Pushkar Ram was also arrested. Challan was filed against the appellant and Pushkar Ram in their presence and Ismile alias Poona and Prabhulal were declared absconders and against them the challan was filed under Section 299 of the Cr.P.C.
3. Pushkar Ram was discharged and the appellant was charged under Section 8/18 of the NDPS Act. He pleaded not guilty. The prosecution examined as many as seven witnesses. No defence evidence was led. The learned trial Judge heard the arguments and delivered the judgment on 5-5-98 whereby the appellant was found guilty for the said offence and was awarded 10 years' rigorous imprisonment and a fine of Rs. 1 lac. For non-payment of fine he was further awarded six months' rigorous imprisonment.
4. I have heard the learned counsel for the appellant and the learned Public Prosecutor for the State and I find that the appeal is fit to be allowed. The learned counsel for the appellant has attacked the judgment mainly on two counts. He has argued that the 30 gms sample which allegedly was taken on the spot, did not reach the Public Analyst in its original condition. It has been further argued that there being no independent corroboration of the prosecution story, it is not safe to convict the appellant solely on the testimony of interested witnesses.
5. As pointed out earlier the prosecution story is to the effect that after the recovery of the opium, two samples weighing 30 gms. each were separated and sealed. These samples have been sent to the FSL Laboratory situate at Jaipur. The chemical analysis reort, Ex. P/8 received from the Public Analyst goes to show that the material sent to the FSL was weighed there and was found to be only 18 gms along with the weight of the polythene in which it was packed and sealed. Needless to say that in view of this difference in the weight the defence arguments become acceptable. In the case of Gopal v. State of Rajasthan (RCC Oct., 98 page 417 (sic)) 30 gms. sample was taken and in the FSL the weight was found to be 23 gms only. Similarly, in the case of Sushil Sharma v. State of Rajasthan 2000 Cr LR Raj 549, 30 gms sample was taken but the weight in the FSL was found to be only 26 gms. In both the cases the accused persons were acquitted on account of the difference of weight. In the first case there was a difference of 7 gms and in the second case there was a difference of 4 gms only whereas in the instant case the difference is more than 12 gms. In the circumstances narrated above, I find that the packet which contained 30 gms opium did not reach the office of the Public Analyst intact and the material examined for the report Ex. P/8 has not been proved to be the same which was recovered allegedly from the appellant.
6. It is not in dispute that the independent 'Motbirs' P.W. 1 Bhanwar Lal and P.W. 2 Tulsi Ram did not support the prosecution story about the alleged recovery from the appellant and both were declared hostile. In a serious case like this in which minimum sentence provided is 10 years' rigorous imprisonment and a fine of Rs. 1 lac it is desirable that the prosecution storyi should be supported by independent evidence. It is not safe to convict a person in such a case without slightest independent corroboration.
7. In the result, the appeal is allowed. The judgment of the learned trial court finding the appellant guilty is set aside. The appellant is acquitted for thecharge. Amount of fine if deposited by the appellant shall be refunded to him.