AGRAWAL, J. - (1.) THIS appeal has been filed by the State against the judgment of the Sessions Judge, Jodhpur dated 25th June, 1973 in Criminal Appeal No 40/73. The Sessions Judge, by his judgment aforesaid, allowed the appeal filed by the respondent against the judgment dated 10th April, 1973 passed by the Excise Magistrate, Jodhpur and acquitted the respondent of the charge under section 9 of the Opium Act (hereinafter referred to as 'the Act' ).
(2.) THE prosecution case, briefly stated is as under: On 14th November, 1969, at about 11 A. M. Mohan Lal (P. W. 6), Excise Inspector, Chittorgarh and Manohar Lal (P. W. 3) Excise Inspector, Bilara, conducted a search of the house of the respondent at Bilara and during the course of search of the said house, found a tin containing two bags. One of the bags contained 8 kgs. of opium and the other bag contained 1. 60 kg. of opium. After taking samples of the contents, of both the bags, they seized both the bags and after placing them in the tin sealed the same. THE packets containing the samples of the contents of the two bags were also sealed. THEreafter a report was made by Mohan Lal (P. W. 6) at P. S. Bilara. Along with the said report he submitted the sealed tin containing the two bags having 9. 60 kgs of opium as well the two sealed packets of the samples of the contents of the two bags. THE said report was registered at P. S. Bilara on 14th November, 1969 at 5. 30 P. M. on the basis of the said report, a case under section 9 of the Opium Act was registered, against the respondent. After completing the investigation, the police filed a challan against the respondent in the Court of Excise Magistrate, Jodhpur and a charge under section 9 of the Opium Act was framed against the respondent. The prosecution, in support of its case examined seven witnesses. Manohar Lal (PW. 3) and Mohan Lal (P. W. 6) are the two Excise Inspectors, who had conducted the search and had seized the bags containing opium from the house of the respondent. Mohan Lal (P. W. 1) and Bhanwar Lal (P. W. 5) are the attesting witnesses of the seizure memo regarding the recovery of the bags of opium. The said attesting witnesses have, however, turned hostile. Swaroop Singh (P. W. 7) was the S. H. O. P. S. Bilara, who had conducted the investigation of the case. Sohan Singh (P. W. 2) is the police constable, who had taken the samples of the contents of two bags from the office of the Superintendent of Police, Jodhpur to the Police Forensic Science Laboratory, Jaipur for chemical examination. Bheru Singh (P. W. 4) was posted at P. S. Bilara and had taken part in the investigation of the case. The prosecution also produced the report of the Assistant Director, Chemical Section, Police Forensic Science Laboratory C. I D. , Rajasthan Jaipur (Ex. P. 5) to prove that the two samples which were taken from the two bags containing opium seized from the house of the respondent on chemical analysis were found to contain 5. 37 and 6. 63% morphine respectively. The respondent in his statement under section 342 Cr. P. C. , denied that any opium was recovered from his residence. The Excise Magistrate, Jodhpur, by his judgment dated 10th April, 1973, held that from the evidence of the Excise Inspectors, Manohar Lal (P,w. 3) and Mohan Lal (P. W. 6), it was established that opium weighing 9 kgs. 600 gs. was recovered from the possession of the respondent and that he was in conscious possession of the same and, therefore, the offence under section 9 (B) of the Act was fully established against the respondent. The Excise Magistrate therefore, convicted the respondent of the offence under section 9 (a) of the Act and sentenced him to simple imprisonment for a period of four months and fine of Rs. 500/- and in the event of non-payment of fine to undergo simple imprisonment for a further period of two months. The respondent filed an appeal Criminal Appeal No. 40/73 against his aforesaid conviction and the sentence imposed by the Excise Magistrate, Jodhpur and the said appeal was allowed by the Sessions Judge, Jodhpur by his judgment dated 25th June, 1973. The Sessions Judge rejected the contention of the respondent that since the search of his house was illegal, having been conducted in contravention of the provisions of section 165 Cr. P. C. the respondent could not be convicted on the basis of the evidence obtained during the said search. The learned Sessions Judge held that the illegality in search would not mean that the evidence that has been obtained as a result of the search should not be made the basis for conviction and that the only effect of the illegality in the search was that the evidence regarding the seizure has to be carefully scrutinized. The learned Sessions Judge also rejected the contention of the accused-respondent that in view of the fact that the two attesting witnesses of the case, namely, Mohan Lal (P. W. 1) and Bhanwar Lal (P. W. 5) have turned hostile, the search or seizure cannot be said to have been established. The learned Sessions Judge was of the view that both the attesting witnesses had been won over and that the defence could not make use of their testimony and that reliance could be placed on the evidence of the two Excise Inspectors, namely, Manohar Lal (P. W. 3) and Mohan Lal (P. W. 6) and on the basis of their evidence, it was established that the house of the accused-respondent was searched and opium was recovered from the same. The learned Sessions Judge also rejected the contention of the accused-respondent that the prosecution could not rely on the report of the Assistant Director, Chemical Section, Police Forensic Science Laboratory, C. I. D. Rajasthan, Jaipur, as the same was not put to the accused-respondent during the course of his examination under section 342 Cr. P. C. The learned Sessions Judge held that the accused-respondent during the course of his examination, under section 342 Cr. P. C. had been asked as whether the opium was recovered from his possession. The learned Sessions Judge, however, accepted the contention of the accused-respondent that the prosecution had failed to prove that the samples of the contents of the two bags which were sealed by the Excise Inspectors at the time of the recovery, the same which were sent to the Police Forensic Science Laboratory and further that the seals had remained intact till these samples reached the said Laboratory. The learned Sessions Judge held that it was incumbent upon the prosecution to adduce evidence to show that the samples of the Chemical Examiner in the same condition, in which it was taken by the Excise Inspector and that in the present case, there is no evidence to show the nature of the seal with which the packets were sealed when they reached the office of the Assistant Director, Police Forensic Science Labo-ratory, C. I. D. , Rajasthan, Jaipur and in the absence of this evidence, it was not possible to believe that these samples were bearing the same seals which were put on the packets at the time of the seizure when they reached the office of the Assistant Director, Police Forensic Science Laboratory and that in the absence of such an evidence, it could not be held that the seals of those samples were not tampered with. The learned Sessions Judge, therefore, held that the report of the Assistant Director, should not be read against the accused respondent to fasten the guilt on him and he acquitted the accused-respondent of the offence under section 9 of the Opium Act.
(3.) SHRI M. C. Bhati, the learned Public Prosecutor appearing for the State has submitted that the learned Sessions Judge was in error in holding that the report (Ex. P. 5) of the Assistant Director, Chemical Section, Police Forensic Science Laboratory, Rajasthan, Jaipur should not be read against the accused to fasten the guilt on him. The learned Public Prosecutor has pointed out that in the report (Ex. P. 5),it has been stated that 'the parcel (s) of two packets enclosed within dirty white cloth cover which were properly sealed with impression of a seal corresponding with the seal impression forwarded". The learned Public Prosecutor has submitted that in view of the said statement in the report, it must be held that the seals, which were placed on the packets of the samples at the time when they were sealed by the Excise Inspector, were found intact by the Assistant Director and, therefore, it cannot be said that the seals had been tampered and there is no reason not to accept the said report. The learned Public Prosecutor has further submitted that even if the report excluded from consideration, there is other evidence to show that the contents of the bags found in the house of accused-respondent during the course of search conducted on 14th November, 1969 were opium. In this connection, the learned Public Prosecutor has invited our attention to the evidence of the Excise Inspector, Mohan Lal (PW, 6), who has stated that the opium was smelt and tasted. The learned Public Prosecutor has submitted that in view of the aforesaid evidence of the Excise Inspector that the article, which was seized from the house of the respondent, was opium, has not been challenged during the course of cross-examination and, therefore, it must be held that the said article was opium. In support of his aforesaid submission, the learned Public Prosecutor has placed reliance on the decision of the Supreme Court in Baidyanath Mishra vs. The State of Orissa (1) and the decisions of this Court in State vs. Sukh Ram (2) and Ana Ram vs. State of Rajasthan (3 ). Shri P. L. Chaudhary, the learned counsel for the accused-respondent has submitted that the learned Sessions Judge was right in holding that the report (Ex. P. 5) should not be read against the accused-respondent to fasten the guilt on him and that the said view of the Sessions Judge is in consonance with law laid down by the Supreme Court in Ukha Kolhe vs. State of Maharashtra (4) and The State of Rajasthan vs. Daulat Ram (5) as well as by this Court in Ratan Lal vs. The State (6 ). Shri Chaudhary has also submitted that on the basis of the evidence of Mohan Lal (PW 6) it cannot be held that the article which was seized from the house of the respondent was opium because Mohan Lal has no where said that he had himself smelt and tasted the same and found it to be opium. Shri Chaudhary has also submitted that the circumstance that the article that was seized from the house of the respondent had been found to be opium on the basis of tasting and smelling was not put to the accused-respondent during the course of his examination under section 342 Cr. P. C. and since the accused-respondent was not afforded an opportunity to offer his explanation about the said circumstance, the same should not be relied against him. Shri Chaudhary has also submitted that since the seizure of the opium was conducted in contravention of the provisions of section 165 Cr. P. C. the aforesaid search and seizure cannot be made the basis for the conviction of the accused-respondent for the offence under section 9 (a) of the Opium Act. In support of his aforesaid contention, Shri Chaudhary has placed reliance on the decision of the Supreme Court in K. L. Subhaya vs. State of Karnataka (7 ). In the present case, from the evidence of Manoharlal (PW 3), it appears that after the search had been made and the two bags containing opium had been recovered, the Excise Inspectors had taken out samples of the contents weighing 30 gms. from each of the bags and that the said samples were placed in separate packets and the same were sealed and the bags were seized and were placed in the tin which was also sealed and the sealed tin as well as the sealed packets of samples were delivered at the police station when the report was lodged. Swaroop Singh (PW 7), S. H. O. , P. S. Bilara, has stated that at the time when the report was lodged, the property recovered in a sealed condition had been delivered to him and that he had sent the same for chemical examination. The said witness had stated that he had sent the same on 25th November, 1969 to the office of Superintendent of Police, Jodhpur through constable Dhoor Singh and from the office of Superintendent of Police, Jodhpur it was taken to Jaipur by constable Sohan Singh. Constable Sohan Singh had been examined, as PW 2, and he has deposed that in 1969, he was posted in police lines at Jodhpur and he had taken the two packets from the office of the Superintendent of Police, Jodhpur to Jaipur for the purpose of chemical analysis and had deposited the same at Jaipur. The report (Ex. P5) of the Assistant Director contains a statement to the effect that the two packets enclosed within dirty white cloth cover which were properly with impression of a seal corresponding with the seal impression forwarded. It would thus appear that although the prosecution has adduced evidence that the samples of the bags which were seized by the Excise Inspectors Mohanlal and Manohar Lal after they had conducted the search in the house of the accused-respondent had been placed in separate packets which were duly sealed and the said sealed packets were delivered by the Excise Inspectors to the S. H. O. , P. S. Bilara, the prosecution has not adduced evidence to show that during the period the sealed packets remained at P. S. Bilara and till they were sent to the office of the Superintendent of Police, Jodhpur for being forwarded to the Forensic Science Laboratory, Jaipur, their seals had remained intact. The prosecution has also not examined the constable who had taken the said samples from the P. S. Bilara to the office of the Superintendent of Police, Jodhpur. Nor has the prosecution adduced any evidence with regard to the nature of the impression of the seal which was put on the packets by the Excise Inspectors as well as the nature of the seal impression, which was forwarded to the Forensic Science Laboratory along with the sealed packets. In the absence of such evidence about the nature of the seals, it is not possible to hold that the seals that were found on the packets of samples by the Assistant Director, Chemical Section, Police Forensic Science Laboratory, and which were tallied with the seal impression that were forwarded with the packets were the very seals which were put on the said packets by the Excise Inspectors Mohan Lal and Manohar Lal at the time when the said packets containing samples were sealed by them, in the circumstances, we are of the view that the learned Sessions Judge cannot be said to have committed any error, in law, in holding that the prosecution had failed to prove that the packets containing the samples were bearing the same seals which were put on the packets at the time of the seizure when they reached the Police Forensic Science Laboratory and the reliance could not be placed on the report (Ex. P5) to fasten guilt on the accused respondent. ;