JAIN, J. - (1.) THE Sessions Judge, Ajmer, vide its judgment dated 7. 1. 2002 in Sessions Case No. 23/2000, convicted and sentenced accused appellant Manohar Singh Son of Shri Bhairon Singh, under Section 8/18 of the N. D. P. S. Act, 1985 (for short, `the Act') to ten years rigorous imprisonment and a fine of Rs. 1,00,000/-; in default of payment of fine, to further undergo one year's rigorous imprisonment. Being aggrieve with the same, the accused appellant has preferred this appeal before this Court.
(2.) BRIEFLY stated the facts relevant for disposal of this appeal are that on 16. 5. 2000 Kesar Singh (PW. 7), the S. H. O. , Police Station Civil Lines, Ajmer, lodged First Information Report at Police Station Civil Lines, Ajmer, District Ajmer, wherein it was alleged that on that date at about 8. 30 PM he was on petrolling duty at Ambedkar Circle near Bus Stand. One informer informed him that one person wearing trouser of green colour and shirt of cream colour, aged about 22-23 years, is standing at the Bus Stand with one bag wherein smell of opium is coming. He recorded the said information (Exhibit P. 11) and sent a copy of the same to the Superintendent of Police, District Ajmer. Thereafter he called Surendra Singh, S. I. , and Ramendra Singh, S. I. , through wireless and reached at the Bus Stand. He saw one person standing at the Bus Stand as per the information given by the informant and on asking he disclosed his name as Manohar Singh. Thereafter a notice under Section 50 of the Act was given to Manohar Singh apprising him about his right to get himself examined either in presence of Magistrate or in presence of Gazetted Officer. The accused appellant gave in writing that he is ready for his search in presence of Gazetted Officer. The search was made in presence of two witnesses, namely, Mahboob Khan (PW. 1) and Rajesh Kumar (PW. 2 ). 4 Kg. opium was found in the bag belonging to the accused. A sample of 100 gram was taken and sealed. The remaining contraband weighting 3 Kg. and 900 gram was also sealed separately. After completion of investigation a charge-sheet was filed against the accused appellant for the offence under Section 8/18 of the Act. The learned trial Court framed charges against the accused appellant for the offence under Section 8/18 of the Act. The accused denied the charge and claimed to be tried. The prosecution examined 10 witnesses and produced documentary evidence Exhibit P-1 to Exhibit P. 22. Thereafter the statement of accused was recorded under Section 313 Cr. P. C. on 10. 10. 2001. The case was fixed for defence evidence and for final arguments on 23. 10. 2001. The arguments were heard on 7. 12. 2001 and the case was fixed for judgment on 18. 12. 2001. Thereafter on 7. 1. 2002 the statement of the accused was further recorded and on the same day the arguments were again heard and impugned judgment was pronounced. The learned counsel for the accused appellant contended that the seized contraband article from the appellant was not produced in the court which is clear from the evidence of the prosecution witnesses including the statement of PW. 7 Kesar Singh, the recovery officer, as well as PW. 5 Sameer Kumar Singh, Dy. S. P. , therefore, it cannot be said that the seized article was the opium. He further contended that the F. S. L. Report was not tendered in evidence during the course of examination of the prosecution witnesses as there is no reference of F. S. L. Report in any of the statements of the prosecution witnesses and in absence of the F. S. L. Report it cannot be said that the seized article was opium and in these circumstances the conviction of the accused appellant is bad in law and he deserves to be acquitted. He also referred Rule 31 of the General Rules (Criminal), 1980 wherein it is provided that upon every document produced and admitted in evidence and proved before court shall be clearly marked the number it bears in the General Index of the case and the number and title of the case. The procedure has been laid down in Rule 31 as to how the documents and material exhibits admitted in evidence on behalf of the parties will be marked in the case. He further contended that contraband was alleged to have been recovered from Shawl and black bag but the same were not seized and exhibited in the case, therefore, link evidence is missing in the case. He also pointed out overwriting in the timings mentioned in Exhibit P-2, which, in his submission, is not permissible as per the General Rules (Criminal ). He also pointed out certain contradictions in respect of colour of trouser of the accused; that one witness of the prosecution says that the accused was wearing trouser of green colour whereas another says that the colour of trouser was black. The learned Public Prosecutor appearing on behalf of the State of Rajasthan, contended that the learned trial Court has considered the oral and documentary evidence available on the record and only thereafter convicted and sentenced the accused appellants. He contended that there is no illegality or perversity in the impugned judgment so as to interfere in it by this Court.
(3.) I have considered the submissions of the learned counsel for both the parties and examined the impugned judgment as well as the record of the trial court. In Kabu @ Khudia vs. State of Rajasthan, Cr. L. R. (Raj.) 1991 P. 183, it has been held that production of seized article is necessary, so that, their chemical report can be corroborated with the seized article, but the learned Public Prosecutor is unable to show any evidence on record and in view of the cases referred therein, the non-production of the case property `mal' in Court gives serious infirmity and doubt about the investigation. In Prakash Singh vs. State of Rajasthan, 2001 (1) RCC 197, this Court considered the earlier judgment in Kabu @ Khudia's case (supra) and other judgments and held that in absence of production of seized articles in court, it cannot be said that the case of the prosecution has been established beyond reasonable doubt and the accused in that case was acquitted only on this ground. ;