N. L. Tlbrewal, J. - (1.) FEELING aggrieved against the order of acquittal, dated June 28, 1978, passed by the learned Addl. Sessions Judge, Bhilwara, in Sessions Case No. 54/77 (73/77), this appeal has been preferred by the State of Rajasthan against the respondents.
(2.) BRIEFLY speaking the prosecution case is that PW/1 Devilal, Sub-Ins-pector in Narcotics Department, received information from a Mukhbir (informant) that in a Car No. R. S. L. 3324 four accused persons were smuggling opium illegally. On receipt of this information and after obtaining directions from District Opium Officer, Chittorgarh, Devilal Sub-Inspector, accompanied by Constables, reached at Raila Railway Crossing No. 54 B, in the night of May 11, 1976. In the morning at about 3. 40 A. M. a car, coming from the side of Bhilwara, was seen and, as such, the police party was allerted and the railway crossing was closed. It is alleged that the said car stopped about 1/4 furlong away from the railway crossing and the Sub-Inspector and his party persons immediately reached there in the Jeep which they were having. Devilal, Sub-Inspector, immediately went to the driver of the car, in order to catch hold of him. He caught the driver and also took the key of the car in his possession. However, in the meantime, the person who were sitting in the car, succeeded in running away. It is alleged that the other police constables chased them and in the process of chasing, one of the miscreants made a fire from his revolver and in reply, the Constable, Chaturbhuj also made fire from his gun in their defence. The unfortunate part of the incident was that all the four occupants of the said car, who are said to be smugglers of the opium, succeeded in running away, inspite of the fact that the Sub-Inspector was having constables of the Narcotic Department and they had also one jeep to chase the miscreants. It is further alleged that from the dicky of the car five bags containing 108. 400 Kgs. of opium were seized. Seizure memo was prepared at the spot. Sample was also taken from the seized opium and proper sealing of the recovered opium as well as the sample was made. A report of this incident was made by Sub-Inspector Devilal at Police Station Banera, District Bhilwara. On this report, the police registered the criminal case u/s 4/9 of the Opium m Act. Accused persons Were arrested and a charge sheet was filed against these persons, including the respondents. However, the co-accused Dhanram and Mepaiyaram were discharged and the accused-respondent Nandlal was charged u/s 4/9 of the Opium Act while the other three respondents were charged u/ss 307/34 and s. 323/34 IPC and u/s 4/9 of the Opium Act. During the trial, the prosecution examined as many as 15 witnesses. The learned trial court, after completion of the trial, and after making a critical analysis of the prosecution evidence, acquitted all the accused persons by his judgment dated 28. 6. 78. As stated above, the State has come in appeal aggrieved against the aforesaid order of acquittal of the respondents. I have heard the learned Public Prosecutor as well as the learned counsel for the respondents.
(3.) THE contention of the learned Public Prosecutor is that so far the respondent Nand Lal is concerned, he was a car driver and he was caught there on the spot. As such, the court should have presumed that he had the knowledge about the opium being in his car and he had conscious possession of the same. So far the respondent Arjun is concerned, the argument is that in the statement of Kanhaiyalal, PW/11 it is proved that this accused had hired the car in question, which is a taxi car, and he had gone in the said car. Further, the accused Nandlal in his statement u/s 313 Cr. P. C. has also stated that he was one of the miscreants in smuggling the opium. So far Bhagirath and Deva accused are concerned, the learned Public Prosecutor submits that they have been identified by PW/1 Devilal and there is a further corroboration from the statement of Nandlal, recorded u/s 313 Cr. P. C. On the other hand, the learned counsel for the respondents, supported the judgment of the trial court and it has been further contended that the findings arrived at by the learned trial court are neither perverse nor arbitrary. As such, it does not call any interference in the order of acquittal. The learned counsel further submitted that the entire evidence on the record does not prove the guilt against the accused beyond reasonable doubt, though it may create some suspicion against them but suspicion alone, however strong it may be, cannot be sufficient for recording the conviction. He further submits that the learned trial court has taken into consideration each and every fact and each evidence has been minutely considered and appreciated and there is absolutely no infirmity in the appreciation of evidence. I have given my consideration to the rival contentions made by the learned counsel. 1 am also conscious of the fact that it is a case in which 108. 400 Kgs. of opium was seized by the Narcotic Department. At the same time, I am constrained to observe that there has been lapses and lapses on the part of the Narcotic Police force at the time when the opium was seized from the car and also subsequently at the investigation stage also. It is unthinkable that the Sub-Inspector who was accompanied by a number of Constables of his Department, who were fully armed with weapon like gun and were having a jeep in their possession, allowed to escape the miscreants and failed to catch hold them, after chasing them. In the normal course, it would not have been possible had the constables and the Sub-Inspector been allert enough. It may also be that they deliberately permitted the miscreants to escape from the clutches of the law. Be that as it may, this Court cannot make any inference against the accused from this fact, and the court has to examine the case against accused respondents, on the basis of the evidence. 1 would like to consider the case of each of the accused respondent separately, so as to appreciate the case in a better manner against them - 1. Accused respondent Arjun:- ;