Y.R.MEENA, J. - (1.) THIS revision petition is directed against the judgment of learned Sessions Judge, Pratapgarh dated 3.3.1981. The learned Sessions Judge has sustained the sentences awarded to Kalu, Veeram and Bhagji by learned Judicial Magistrate, Kapasin Under Section 4/9 of the Indian Opium Act.
(2.) PROSECUTION case is that on 3.6.73 Ajij Mohd., I.O. then Incharge of the Police Station, Rashmi on information through Mukhbir, arranged for raid and proceeded towards the way to village Murili for Nakabandi to apprehend the culprits. At about 3 p.m., it is said that from the side of Lasadia Khurd five persons came and when they were surrounded, three out of five namely, Kalu, Veeram, and Bhagji were apprehended. The other two ran away. The persons apprehended were having some bundles and potliyas. The other two who ran away were also having potaliyas but escaped after throwing their potaliyas on the spot. The substance containing in the bundles and potaliyas was 82 Kgs. 650 grms. Accused present on the spot were arrested. Seizure Memo and Panchnama were prepared. The accused were brought to the police station and first information Ex.P.4 was lodged by PW 11, Ajij Mohd. The accused persons were arrested vide Ex.P.6 and P.7 respectively. Alleged samples were sent to the Forensic Science Laboratory, Jaipur through one Shri Mohan Singh (PW 10) FC No. 957 and received by the Laboratory on 16.7.73. The samples were examined by Shri Ramesh Chandra Sharma. The report of the chemical examination is Ex.P.8. According to the report of Forensic Science Laboratory, packets marked ABGJKL and M contained dark brown solid stiky substance and packets Marked EFCDHI contained solid dark brown coloured substance. The substance was opined as opium. After completing the investigation, the accused petitioners were tried for offence Under Section 4 read with Section 9 of the Opium Act. Twelve prosecution witnesses were examined namely, PW 1 Bashir, PW 2 Ghasi, PW 3 Nandgeer, PW 4 Bhagwat Singh, PW 5 Sambhu, PW 6 Sabdal Khan, PW 7 Babulal, PW 8, Hari Singh, PW9 Arjun Singh, PW 10 Mohan Singh, PW 11 Ajij Mohd., ASI, Incharge of Police Station, Rashmi and PW 12 Ramesh Chandra Sharma, Assistant Director, Forensic Science Laboratory, Jaipur. PW 1 and PW 2 do not support the prosecution story. They were declared hostile, PW 3 does not say from where these bundles and potaliyas were collected, PW.4, PW 5, PW 6, PW 7, PW 8, and PW 9 are members of raiding party. They are all police constables. They of course support the story of prosecution. PW 4 states that on 16.6.73, the samples in question were taken by him to Jaipur and handed over in the office of FSL. Ajij Mohd. is ASI Incharge of the Police Station, Rashmi. He arranged the raid and also lodged the FIR. He is also the investigating officer of this case. Shri R.C. Sharma, Assistant Director, Forensic Science Laboratory was also examined and admits that packets marked ABGJKL and M contained substance only 20 grms in solid state. On the basis of these witnesses, learned Magistrate convicted these three accused petitioners. He sentenced each of these three accused petitioners to undergo six months' rigorous imprisonment and fine of Rs. 2000/ - each, in default to further go one month's rigorous imprisonment each. Aggrieved by the judgment of learned Magistrate, appeal was filed in the Court of Sessions Judge, Pratapgarh. Learned Sessions Judge was fully satisfied with the finding of learned Judicial Magistrate that the accused petitioners have committed the crime Under Section 4 read with Section 9 of the Opium Act opined that Magistrate has rather taken a liberal view. There should be some heavy punishment than awarded by the learned Magistrate. Aggrieved accused petitioners have filed this revision petition in this Court.
(3.) THE learned Counsel for the accused petitioners Shri M.M. Singhvi argued that the samples one stated to have been taken on 3.6.73 and were delivered in the office of Forensic Science Laboratory on 16.7.73. In this regard except Mohan Singh none was examined. Mohan Singh only states that the samples were taken by him and he delivered the samples on 16.7.73. After taking of samples by Ajij Mohd on 3.6.73, they were sent to the S.P. Office on 5.7.73. In this period in whose custody the samples remained nobody knows and from S.P. Office the samples were sent on 16.7.73. Again in whose custody these samples remained is not known. He further pointed out that samples were taken of 30 grms each but in FSL report it was found that samples marked EFCDHI contained 20 grms and remaining samples contained material of opium weighing from 40 grms to 62 grms. Therefore, it cannot be said that samples remained intact till they reached to FSL. For that he relied on the decision of Supreme Court in case of State of Rajasthan v. Daulat Ram : 1980CriLJ929. He further argued that PW 11 Ajij Mohammed, ASI was not competent to investigate the case as he himself was seizing officer and lodged the FIR. He relied on the judgment of Rajasthan High Court in case of Banshilal v. State of Rajasthan decided on 21st February, 1990. His third argument was that as per the provisions of Section 484 of Criminal Procedure Code which came into force during the trial, the Sub Divisional Magistrate was only competent to try the case and not Munsif Magistrate. He relied on : 1977CriLJ220 .;