N. K. JAIN, J. - (1.) THIS revision is directed against the judgment of learned Session Judge, Balotra dated 16. 5. 1984 whereby he has upheld the order of Chief Judicial Magistrate, Barmer dated 22. 10. 1980 convicting and sentencing the accused-petitioner under Section 4/9 of the Opium Act to one year's rigorous imprisonment.
(2.) ACCORDING to the prosecution case that P. W. 3 Shiv Prasad Sharma, Deputy Superintendent of Police, Balotra arrested the accused- petitioner and recovered 7 1/4 tola of opium from his pocket, on his information, 1/7 kg of opium was again recovered from his Dhani on the same day, thereafter, on 8. 9. 1976, 10. 4 kg of opium was also recovered on his information from his field. The police also arrested one Krishna Ram Bishnoi in this connection. The sample was taken and the same was sent for the Chemical Examination. A challan was filed in the Court of Chief Judicial Magistrate, Barmer. The accused in his statement under Section 313, Cr. P. C. stated that he has been falsely implicated and pleaded not guilty. After trial, the learned Magistrate found him guilty, convicted and sentenced him as mentioned above. Being aggrieved, the accused-petitioner filed an appeal before the learned Sessions Judge, Balotra who has dismissed the same. I have heard learned counsel for the parties, and have perused the record. Mr. Suresh Kumbhat has submitted that the petitioner has falsely implicated in this case, and also submitted that the prosecution has failed to bring out on record the complete and full linking of evidence from the stage of recovery of opium to the final stage of reaching the sample to Public Analyst. He has relied upon the decision reported in State of Rajasthan Vs. Daulat Ram (1 ). In the instant case, the P. W. 3 Shiv Prasad Sharma, Deputy Superintendent of Police, Balotra has taken the samples Ex. P/l and Ex. P/2 on 6. 9. 1976, and thereafter, vide Ex. P/3 on 8. 9. 1976. As per his statement the samples were given to one Ganga Ram, Constable for taking it to Sindari Thana for depositing in the Malkhana. Thereafter, P. W. 8 Chattar Singh has taken the samples to S. P. Office, Barmer for the purpose of its chemical examination which was received in the office on 11. 10. 1976 by P. W. 9 Deepa Ram and thereafter P. W. 9 Deepa Ram has given the samples to P. W. 10 Daulatvan for giving it in the office of Chemical Analyst at Jaipur. As per the evidence on record it is clear that admittedly neither the Malkhana-In-charge was produced nor Gan-garam, Constable was produced to show that during those period the samples remained intact. Learned Public Prosecutor has not been able to point out any evidence explaining whether the samples were remained intact during the period 8. 9. 1976 to 10. 10. 1976. There is no evidence on record about this important aspect. However, the learned Public Prosecutor has submitted that there was statement of Padam Singh (P. W. 2) which is not available on the file as the same has been washed out due to rains and sevre flood situation in the region. But, this admitted position that samples remained intact as required under the law has not been proved by the evidence on record. There are number of decisions of this Court and the Hon'ble Supreme Court in which it has been held that it is the duty of the prosecution to prove that the samples have remained intact from the date of recovery to the dale of reaching Chemical Analyst so that the Court could conclude that the seal remained intact throughout. In absence of Padam Singh's evidence which is not available on record it could not be said that the prosecution has proved its onus. This Court under its revisional jurisdiction, where there is any glaring defect in the procedure or manifest error on point of law, can certainly interfere. As stated above, the prosecution has not discharged its onus to prove that the samples have remained intact between the intervening period from 8. 9. 1976 to 10. 10. 1976. Under these circumstances and in view of the decision in State of Rajasthan v. Daulat Ram (supra) there is miscarriage of justice in this case. Therefore, the accused-petitioner is entitled to get the benefit of lapse of prosecution and deserves to be acquitted.
(3.) IN the result, this revision petition, is allowed, the order of conviction passed by the learned Sessions Judge, Balotra dated 16. 5. 1984 and the order of trial Court dated 22. 10. 1980 are set aside. The accused-petitioner is already on bail so he need not surrender, his bail bonds are discharged. .;