S. M. JAIN, J. - (1.) THIS appeal is directed against the judgment dated 31-8-1988 of the learned Additional Sessions Judge, Banner, convicting and sentencing the appellant for the offence under section 18 of the Narcotic Drugs & Psychotrophic Substances Act, 1985 (hereinafter referred to as 'the Act'), to ten years' rigorous imprisonment and a fine of Rs. 1,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for one year.
(2.) THE prosecution case, in brief, was that on September 24, 1987, at about 5. 30 p. m. , Punjraj Singh, Deputy Superintendent of Police, on an information received from the Assistant Sub-Inspector Shivchand that opium was being kept in the Dhani of the accused, went to the said Dhani with the police party. As a result of search, two kilograms of opium was recovered from a Jhumpa, said to be of the appellant. THE First Information Report of this incident was lodged by the Deputy Superintendent of Police at the Police Station Chouhtan on the same day at about 8. 00 p. m. A case under section 17/18 of the Act was registered against the accused. THE sample of the opium was sent to the State Forensic Science Laboratory, Rajasthan, Jaipur for examination. THE Deputy Director of the said Laboratory has opined that on examination the sample, was found to be of opium having 1. 67% morphine. On completion of investigation, the police submitted a charge-sheet in the Court of the Chief Judicial Magistrate Barmer, who committed the accused for trial to the Court of Additional Sessions Judge. THE accused was charged for the offence under section 18 of the Act. He pleaded not guilty and claimed to be tried. After trial, the Additional Sessions Judge has convicted and sentenced the accused, as aforesaid. I have heard Mr. R. N. Bishnoi-counsel for the appellant and the Public Prosecutor for the State. Shri Bishnoi has contended that the substance-was recovered from the Jhumpa in the Dhani. The door of the Jhumpa was not locked. The prosecution has failed to prove that the opium was recovered from the exclusive possession of the accused. His conviction for the offence under sec. 18 of the Act cannot, therefore, be sustained. There is substance in the submissions made by the learned counsel for the appellant. It is not the case of the prosecution that opium was recovered on the information or at the instance of the accused. True, the opium was recovered from a Jhumpa and the accused was present in the Dhani at that time. However it has come in evidence that the door of the Jhumpa was not locked. Gena Ram Head Constable, has admitted in clear terms that the Dhani was in the joint possession of the accused and his brother Veera Ram and that opium was also recovered on another occasion from Veera Ram. He has admitted, in cross-examination, that he did not know that the Jhumpa had been partitioned between the accused and his brother. Thus this evidence is insufficient to hold that the Jhumpa, from where the opium was recovered, was in the exclusive possession of the accused. No presumption can be drawn that the accused was in the exclusive possession of the Jhumpa from the mere fact that the Dhani, in which the Jhumpa was situated, was in the joint possession of the accused and his brother. In the light of this evidence, it is clear that the prosecution has failed to establish that the Jhumpa, from where the opium was recovered, was in the exclusive possession of the accused. Obviously, in the absence of a clear evidence that the opium was found in the possession of the accused, his conviction for the offence under section 18 of the Act cannot be sustained. Consequently, the appeal is allowed. The judgment of the learned Additional Sessions Judge, Barmer dated August 31, 1988 is set-aside and the appellant is acquitted of the charge levelled against him. He is, at present, in jail. He shall be released forth-with if not required in any other case. .;