SUNIL KUMAR GARG, J. - (1.) THIS appeal has been filed by the State of Rajasthan against the judgment and order of acquittal dated 7.11.1996 passed by the learned Special Judge, NDPS Cases Jodhpur in Sessions Case No. 32/96 by which he acquitted the accused respondents of the charges for the offence Under Sections 8/18, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act').
(2.) THE facts giving rise to this appeal, in short, are as follows: -On 26.2.1996; PW -19 Idanram. Dy. SP came to Bhatiyana in connection with FIR No. 9/96 Police Station Phalsund at about 3.00 PM and then a wireless message was received that two smugglers were coming on a motor cycle from Sankda to Bhatiyana and both were young and wearing pent, shirt etc. and upon this, during Nakabandi, efforts were made to get them stopped at Sankada Fantay, but could not be stopped and, thereafter, they were chased and later on, motor cycle slipped in the sand and they tried to run away, but after chasing they were apprehended. On being asked, first person told his name as Mangilal (accused respondent No. 1) and another person told his name as Harlal (accused respondent No. 2). Thereafter, PW -19 Idanram told them that he had suspicion that they had contraband opium and the accused respondents Mangilal and Harlal were given notices Ex.P/6 and Ex.P/7 respecitvely under the provisions of Section 50 of the NDPS Act asking them whether they wanted to be searched before the Addl. Chief Judicial Magistrate, Pokaran or by PW -19 Idanram and they gave their consent that they could be search by PW -19 Idanram and the Fards of consent of the accused respondents Mangilal and Harlal are Ex.P/4 and Ex.P/5 respectively. Thereafter, first accused respondent No. 1 Mangilal was searched and on search, about Rs. 3 lacs were recovered from him and apart from that 500 grms. milk of opium was also recovered from him out of which one sample of 30 grms. was taken and sealed on the spot separately and marked as S -1 and the remaining milk of opium was also sealed separately on the spot and marked as A. Thereafter, accused respondent No. 2 Harlal was searched and on search, Rs. 5000/ - were recovered from him. The Fard of search and seizure prepared on the spot by PW -19 Idanram is Ex.P/8 and the Motbir witnesses are PW -6 Bhanwar Singh and PW -17 Moolaram. The fard of specimen impression of seal is Ex.P/9. The accused respondent No. 1 Mangilal was arrested through arrest memo Ex.P/10 and the accused respondent No. 2 Harlal was arrested through arrest memo Ex.P/11. The motor cycle in question was seized through seizure memo Ex.P/12. Thereafter, a regular FIR Ex.P/20 was chalked out at Police Station Phalsund. The recovered articles and sample were handed over to Malkhana Incharge PW -14 Swaroop Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/21A. Thereafter, one sample was given by PW -14 Swaroop Singh to PW -13 Hukam Singh, who deposited the same in the FSL, Jaipur and obtained receipt Ex.P/18. The FSL report is Ex.P/19A in which it was reported that the sample contained in the packet marked S -1 gave positive tests for the Chief constituents of the coagulated juice of opium poppy having 2.75% (Two point seven five percent) Morphine. After usual investigation, police submitted challan against the accused respondents in the Court of Special Judge, NDPS Cases, Jodhpur. On 7.8.1996, the learned Special Judge, NDPS Cases, Jodhpur framed charges for the offence Under Sections 8/18, 27A and 29 of the NDPS Act against the present accused respondents the charges were read over and explained to the accused respondents. They denied the charges and claimed trial. During trial the prosecution, in support of its case, examined as many as 19 witnesses and got exhibited several documents. Thereafter, statements of the accused respondents Under Sections 313 Cr.P.C. were recorded. No evidence in defence was produced by the accused respondents. After recording evidence and conclusion of trial, the learned Special Judge, NDPS Cases, Jodhpur through his judgment and order dated 7.11.1996 acquitted accused respondents of all the charges framed against them holding inter -alia: (1) That since from the Fard of consent Ex.P/4 in respect of accused respondent No. 1 Mangilal, it appears that he has stated that there was no use of taking his consent as recovery had already been made, therefore, in the present case, compliance of mandatory provisions of Section 50 of the NDPS Act was not made by PW19 Idanram. (2) That PW -13 Hukam Singh took sample to the office of S.P., where the sample was checked by PW -9 Nischal Kumar and he returned the sample to Police Station Phalsund with some objections and PW -13 Hukam Singh handed over the sample to PW -14 Swaroop Singh, who at the relevant time was Malkhana Incharge and on the next day, PW -14 Swaroop Singh gave the sample to PW -13 Hukam Singh, but such type of entries are not found in the Malkhana Register Ex.P/21A and, therefore, evidence is missing on the point from 27.2.1996 to 28.2.1996 where sample remained. Thus, learned Special Judge came to the conclusion that link evidence is not complete. (3) That learned Special Judge, after giving many cogent reasons and finding so many contradictions, came to the conclusion that even the evidence of recovery is doubtful in the present case. (4) That prosecution has not been able to prove its case beyond all reasonable doubts against the accused respondents for the offence Under Sections 8/18, 27A and 29 of the NDPS Act. Aggrieved from the said judgment and order of acquittal dated 7.11.1996 passed by the learned Special Judge, NDPS Cases, Jodhpur, this appeal has been filed by the State of Rajasthan. In this appeal, it has been contended by the learned Public Prosecutor for the appellant that the findings of acquittal recorded by the learned Special Judge are based on conjectures and surmises and since it was a case of chance recovery therefore, provisions of Section 50 of the NDPS Act would not be applicable and the link evidence is also sufficient. Hence, it was prayed that this appeal be allowed and the impugned judgment and order of acquittal passed by the learned Special Judge, NDPS Cases, Jodhpur be set aside and the accused respondents be convicted and sentenced for the offence Under Sections 8/18, 27A and 29 of the NDPS Act.
(3.) ON the other hand, the learned Counsel appearing for the accused respondents submitted that the findings of acquittal recorded by the learned Special Judge are based on correct appreciation of evidence and cogents reasons have been given by the learned Special Judge in acquitting the accused respondents of the charges for the offence Under Sections 8/18, 27A and 29 of the NDPS Act and thus, no interference is called for with the impugned judgment and order of acquittal in this appeal.;