BHERULAL Vs. STATE

JUDGEMENT

(1.) Bherulal, the petitioner in this revision, was prosecuted for offence under Sec. 4/9 of the Opium Act on the allegations that on 18th May, 1974 he was found in possession of 7 kg 300 gm of opium. The Judicial Magistrate No. 1, Jodhpur vide his judgment dated 21st Nov., 1978 convicted the petitioner of the said offence and sentenced him to rigorous imprisonment for two years and to pay a fine of Rs. 500.00 and in the event of failure to pay the fine, to further undergo two month's simple imprisonment.

(2.) During the pendency of the appeal of the petitioner against the judgment of the Judicial Magistrate No. 1, Jodhpur, the Sessions Judge, Jodhpur passed an order dated 24th Nov., 1979 whereby in exercise of his powers under Sec. 391, Cr. P.C., the Sessions Judge directed the Judicial Magistrate to record additional evidence on the point whether the seal impression with which the sample for chemical examination was sealed was forwarded to the State Forensic Science Laboratory, Jaipur or not and whether the seal with which the sample packet was sealed corresponded to the aforesaid seal impression. The petitioner filed S.B. Criminal Revision No. 51 of 1980 against the said order of the learned Sessions Judge and the said revision was dismissed by this Court by its order dated 17th March, 1980 on the view that the Sessions Judge had only allowed additional evidence to be led to the effect as to what specimen of seal impressions were sent to the Chemical Examiner and has not allowed additional evidence to be led as to how the sample was dealt with during the time of its seizure till it reached the office of the Chemical Examiner. Thereafter, the Judicial Magistrate recorded the statement of Gurumukh Das PW-8. After considering the said additional evidence, the Sessions Judge decided the appeal by his judgment dated May 19, 1981 whereby the conviction of the petitioner under Sec. 4/9 of the Opium Act was maintained 'but the sentence was reduced to one year's rigorous imprisonment. Sentence of fine was, however, maintained.

(3.) The learned counsel for the petitioner has urged that while recording the additional evidence in pursuance of the directions given by the learned Sessions Judge vide his order dated Nov. 24, 1979, the Judicial Magistrate also recorded evidence on the question as to how the sample was dealt with during the time when it was seized and sealed till it reached the office of the chemical Examiner and that the said evidence was in admissible in view of the decision of this Court dated 17th March, 1980. There is no substance in this contention because the only evidence that has been adduced is that of Gurumukhdas, PW-8, an L.D.C. in the receipt-section of the State Forensic Laboratory, Jaipur, who has stated that alongwith the sample, the specimen of the seal was received and the specimen of the seal was compared with the seal on the packet and was found to tally. In other words, the additional evidence, that has been recorded, is only with regard to the fact whether the specimen of the seal was sent separately or not and whether it tallied with the seal on the packet. The Sessions Judge, after considering the evidence, has found that the prosecution had examined four witnesses viz., Bhopal Singh, PW-7, who has stated that on 18th April, 1974 he had sent the sample alongwith other papers to the office of the Superintendent of Police, Jodhpur from Police Station, Jhanwar; Vijaydan, PW 3 who had carried the sample from Police Station, Jhanwar on 18th April, 1974 to the Office of the Superintendent of Police, Jodhpur; Nemichand, PW-4 who has posted as Head-Constable in the Office of the Superintendent of Police, Jodhpur, who had carried the sample to the State Forensic Science Laboratory, Jaipur and deposited the same there and Gurumukhdas, PW-8, who compared the seal on the packet with the specimen seal and found it to be the same.