1
S.B.Criminal Appeal No.61/88
(State of Jawahara Ram)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
JUDGMENT
THE STATE OF RAJASTHAN. V. JAWAHARA RAM
S. B. CRIMINAL APPEAL NO. NO.61/88,
against the Judgment dated 3.4.87,
passed by Shri A.P.Solanki, RJS, Munsif
& Judicial Magistrate, First Class,
Bikaner, in Criminal Case No.81/81.
DATE OF JUDGMENT MAY 22, 2009.
PRESENT
HON'BLE MR. JUSTICE C. M. TOTLA
Mr. Anish Bhurat, PP, for Appellant(s).
Mr. R.J.Poonia for Mr.LR Poonia, for Respondent.
BY THE COURT:
Preferring this appeal, prosecution requests that setting aside the
judgment of the trial Court dated 3.4.87 acquitting respondent of the
offence of Section 9, Opium Act, the respondent be convicted and
appropriately punished for the offence.
Heard learned Public Prosecutor and learned counsel for the
respondent.
According to prosecution, on 7.10.81, 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
2
S.B.Criminal Appeal No.61/88
(State of Jawahara Ram)
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.81/81 was registered.
Appellant charged for the offence of Section 9, Opium Act that in
his possession and illegally on 7.10.81 at around 2.30 pm in a bus at town
Kolayat, found 3 quarter kilo of opium – appellant claimed trial.
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
3
S.B.Criminal Appeal No.61/88
(State of Jawahara Ram)
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.
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.
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.
Considering arguments, perused record and judgment of the trial
Court.
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
4
S.B.Criminal Appeal No.61/88
(State of Jawahara Ram)
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.
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
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
5
S.B.Criminal Appeal No.61/88
(State of Jawahara Ram)
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.
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
6
S.B.Criminal Appeal No.61/88
(State of Jawahara Ram)
deposed that he in November, 1981 was posted as constable and carrying
sealed packet of FIR No.55/81, 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.
(C. M. TOTLA), J.
scd