- (1.) Heard learned counsel for the parties and perused the read. The instant appeal has been preferred by the appellant CBN for assailing the judgment dt. 31.10.2014 passed by learned Special Judge, N.D.P.S. Act Cases, Udaipur in Sessions Case No. 222/2013 whereby, the accused respondents were acquitted from the charges for the offences under Sections 8/18(B), 8/15(C) & 8/29 of the N.D.P.S. Act.
(2.) Facts in brief are that Ravikant Prasad, Inspector, CBN claims to have received a source information on 19.2.2013 to the effect that Prem Singh Rajput was indulged in illicit trade of opium and poppy straw and if a raid was conducted at his residence on 20.2.2013, opium and poppy straw could be recovered. The information was allegedly taken down in writing and a copy thereof forwarded to the superior officers. A team consisting of the officers of CBN was constituted to conduct the raid. Two independent motbirs were summoned. The team reached the house allegedly owned by Prem Singh on 20.2.2013 at about 7 O' clock in the morning. Prem Singh was found present in the house. He was informed of the purpose of the team's visit. Thereafter, the members of the team entered inside the house and conducted a search. From inside the house, two steel tins containing 4 kgs. 300 grams of opium, 8 gunny bags of poppy straw powder weighing 249 kgs. 500 grams and 6 gunny bags of poppy straw capsules weighing 162 kgs. 700 grams were recovered. Samples were collected from recovered contraband. Prem Singh allegedly gave information to the Investigating Officer that 1 quintal of poppy straw was provided to him by accused Satyanarayan Keer whereas the remaining poppy straw and opium was provided by Bhagwan Das. These two accused were also arrested. The samples collected from the seized contraband were forwarded to the Government Opium Laboratory, Neemuch from where a report was allegedly received that the samples gave positive test for opium and opium poppy. A complaint was filed against the three accused for the said offences. The trial Court framed charges against Prem Singh for the offences under Sections 8/18(B) and 8/15(C) of the NDPS Act and against Satyanarayan Keer and Bhagwan Das for the offence under Sec. 8/29 of the NDPS Act. The accused denied the prosecution allegations and claimed trial. The prosecution examined as many as 7 witnesses in support of its case and exhibited 18 documents. The accused, in their statements under Sec. 313 Cr.P.C. denied the allegations of the prosecution witnesses but did not choose to lead any defence.
(3.) The trial Court at the conclusion of the trial found that the prosecution failed to give primary evidence of the seizure because the Mudda Maal was not exhibited during the trial; no link evidence was given to prove the factum that the samples remained in the self same condition from the seizure till they were received by the laboratory; the independent witnesses associated with the recovery did not support the prosecution case; the evidence led by the department regarding compliance of the mandatory requirements of Section 42(2) of the NDPS Act was found to be doubtful because neither the original source information was exhibited at the trial nor the entry in the despatch register was proved to establish the fact that the information was forwarded to the superior officer; the Deputy Commissioner Narcotics, Kota who allegedly received the information was not examined in evidence; neither any search warrant was procured before searching the house of Prem Singh nor did the seizure officer prepare the memorandum of reasons for not procuring the search warrant. After appreciating the entire evidence led before it, the trial Court held these shortcomings in the prosecution case to be fatal and proceeded to acquit the accused from the charges leveled against them. Hence, this appeal by CBN.;