I. S. ISRANI, J. - (1.) THIS criminal appeal has been filed against the judgment dated September, 1979, passed by Chief Judl. Magistrate, Jhalawad, in Criminal Case No. 48/1978 viz. State vs. Kalu, whereby respondent was acquitted.
(2.) BRIEFLY, the facts of the case are that S. H. O. Police Station Jhalara-patan, received an information from an informer that one person was excepted on the way between Chandloi and Patan coming from Chandloi side. He thereupon proceeded with Hasan Khan Constable and two local persons Kalyan Singh and Bhagwan Singh at 8. 00 p. m. to take positions on the road near Titarvasa towards Chandloi. At about 10 p. m. it is stated that he saw respondent Kalu coming with a gunny bag on his head. Upon interrogation the respondent gave out his name and on further enquiry gunny bag was found to contain illicit opium. Since no means of weighment were available the accused alongwith the gunny bag was brought to the police station at 11. 00 p. m. It was found that illicit opium was 11 kgs. Samples were taken and packets were made out according to rules and were sealed and signed. The first information report was also lodged by Pratap Singh S. H. O. on March 10, 1977. After completing the investigation, challan was filed by police who denied the charges framed against him and demanded trial. The trial Court after recording evidence and hearing arguments of both the sides, acquitted the respondent of the charges levelled against him. None has appeared on behalf of the State, even though the appeal was listed for quite a few days on the cause list. No lawyer has appeared on behalf of the respondent also and it is not possible to appoint any Amicus Curiae to represent the accused on account of absence of lawyers since about one month. I have gone through the judgment of the trial Court, memo of appeal filed on behalf of the State and also the evidence and documents on record. The grounds on which the appeal has been filed are firstly that there are no material contradictions as held by the trial court, in the evidence of P. W. 5 Pratap Singh S. H. O. and P. W, 3 Hasan Khan Constable, therefore, it is said that the trial court has misappreciated the evidence on record. The further ground raised is that the trial court has also erred in holding that on the evidence of P. W. 1 Kalyan Singh, the accused could not be connected with the gunny bag, which is said to have contained illicit opium. The third ground raised on behalf of State is that the trial-court has erroneously discarded the experts evidence of G. P. Sharma, Director State Forensic Science Laboratory, Jaipur, on the ground that he could not be said to be a Chemist within the meaning of Section 293 Cr. P. C. Lastly, it has been urged that the trial court has committed serious error in taking into consideration the unproved plea of accused that the illicit opium belonged to one Ratan Gujar and that the accused respondent has been falsely incriminated. P. W. 5 Pratap Singh S. H. O. has stated that he alongwith constable Hasan Khan, Bhagwan Singh P. W. 2 and Kalyan Singh P. W. 1 went to intercept the accused respondent when he received information regarding his coming. According to Pratap Singh P. W. 5 the respondent started running on seeing the police party whom they caught hold of by chasing. However, P. W. 3 Hasan Khan does not say so. Pratap Singh further states that the gunny bag was got opened on the spot itself in which the illicit opium was carried by the respondent. However, according to Hasan Khan P. W. 3, no such thing took place at the spot. He states that on giving some threats on the spot the respondent accused admitted that the gunny bag contained illicit opium, there upon, he was taken to police station where the gunny bag was opened and it was found that it contained illicit opium. I think that the statements given by two police officers, as stated above, show that they materially contradict each other on important aspects of the evidence. Coming to the evidence of Bhagwan Sahai P. W. 2, he has stated that he did not come alongwith the S. H. O. Pratap Singh as stated by him. He has also stated that he did not see any such occurrence as has been described by S. H. O. Pratap Singh, in which it has been stated that they saw the accused respondent coming carryig gunny bag on his head, which contained illicit opium and the same was confiscated on the spot. This witness is an independent witness, who has been declared hostile. He was cross-examined by Public Prosecutor but nothing came out from the same, which may show that the witness was supporting the version of the incident as given by the prosecution. In his further cross-examination this witness has stated that the accused respondent was coming on cycle. When he reached near, he was stopped by the S. H. O. Pratap Singh. A gunny bag was lying in a ditch near the road. The accused respondent on enquiry stated that this gunny bag did not belong to him. However, Pratap Singh S. H. O. asked him to carry on gunny bag and took him to police station. This witness was shown his police statement Ex. P. 4 and he denied the portion C to D, with which he was confronted. He has also stated that Ex. P. 1 regarding confiscating of the illicit opium was not read out to him. Therefore, it can be seen that this independent witness does not support the prosecution version at all. He has further stated that the respondent was saying again and again that this gunny bag did not belong to him. According to PW 1 Kalyan Singh, S. H. O. Pratap Singh and Constable Hasan Khan started for intercepting the person regarding whom information had been received earlier then two other witnesses. He says that Bhagwan Singh PW 2 reached on the spot afterwards on cycle. This witness states that when he reached the spot, S. H. O. Pratap Singh had already caught hold of respondent and gunny bag was lying on the road. This, therefore, shows that this witness also did not see the respondent coming with a gunny bag on his head. He also did not see that gunny bag was recovered from the possession of the respondent. He only saw that the gunny bag was lying on the road where the respondent was intercepted by S. H. O. Pratap Singh. It is also worth noticing that this witness has not been declared hostile, which means that the prosecution accepts the version, given by this witness. Thus, there is material contradiction in the version given by this witness and the one given by the prosecution. This witness in cross-examination has further stated that S. H. O. Pratap Singh threatened the respondent and asked him to carry the gunny bag to the police station even though he was saying that this gunny bag did not belong to him. It is, therefore, clear that there is contradiction in the statements of PW 1 Kalyan Singh and that of S. H. O. Pratap Singh PW 5 and Constable Hasan Khan PW 3. The next ground raised by the State is that the trial court has erred in discarding the expert evidence of Director, State Forensic Science Laboratory, Jaipur. Sub-section (4) of Sec. 293 Cr. P. C. provides that this section shall apply to scientific experts, mentioned thereunder (a) any Chemical Examiner or Assistant Chemical Examiner to Government; (e) the Director (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory. The trial court discarded the experts evidence, which has been tendered under subclause (e) of sub-section (4) of Section 293 Cr. P. C. This report has been given by the Director, State Forensic Science Laboratory, Jaipur. It has been observed by the trial court that since the' material sent for examination was illicit opium, the report was expected to have been sent under sub-section (4) (a) of Section 293 Cr. P. C. by a Chemical Examiner and not by an expert or by a Director, State Forensic Science Laboratory. It has been further observed that inspite of raising such objection the Director Shri G. P. Sharma was not examined personally to state whether he was also qualified as a chemical examiner to give report regarding the material being illicit opium. In these circumstances, the trial court rightly discarded the evidence produced by the prosecution in this regard. I, therefore, find material contradictions in the statements of PW 5 Pratap Singh S. H. O. , PW 3 Hasan Khan Constable, PW 2 Bhagwan Singh and PW 1 Kalyan Singh. Independent witness PW 2 Bhagwan Singh has not supported the version of the prosecution at all. The same is the position of PWl Kalyan Singh, who also did not support the version that the gunny bag, containing illicit opium was recovered from the possession of the respondent. I, therefore, do not find any force in this appeal and it is dismissed. The accused respondent is on bail and he need not surrender to his bail bonds. . ;