State vs Bhaboot Singh And Ors
2022 Latest Caselaw 9631 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 228/1990

State of Rajasthan

----Appellant Versus

1. Bhaboot Singh S/o Shri Idan Singh, by caste Rajpur, resident of Ola.

2. Deep Singh S/o Shri Ran Singh, by caste Rajput, resident of Ola.

3. Goma Ram S/o Shri. Harji, by caste Jat, resident of Batai.

Police Station Gida, District Barmer.

                                                                 ----Respondents


For Appellant(s)          :     Mr. S.K. Bhati, PP for the State
For Respondent(s)         :     Mr. R.S. Chouhan



                     JUSTICE DINESH MEHTA

                                 Judgment

25/07/2022

1. The instant appeal under Section 378 (iii) and (i) of the Code

of Criminal Procedure (hereinafter referred to as "the Code") has

been preferred by the State of Rajasthan, assailing the judgment

dated 29.01.1990 passed by the Munsif and Judicial Magistrate,

First Class, Barmer (hereinafter referred to as 'the trial Court') in

Criminal Case No.279/85, whereby the accused-respondents were

acquitted for the offences under Section 4 and 9 of the Opium Act,

1878 (hereinafter referred to as 'the Act of 1878').

2. Mr. Bhati, learned Public Prosecutor at the outset informs the

Court that during pendency of the present appeal, respondent

No.3 - Goma Ram has passed away.

(2 of 9) [CRLA-228/1990]

3. Hence, the appeal qua respondent No.3 - Goma Ram is

abated.

4. Facts appertain for the present purpose are that based on

the information received from an informer (mukhbir) regarding

potential illicit trade of opium, the police intercepted a jeep GJF-

2292 at 3:00 a.m. on the morning of 31.03.1985. Three persons

viz., Bhabhoot Singh, Deep Singh and Goma Ram (accused

respondents herein) who were sitting in the jeep ran away; they

were followed and later arrested by the police personnel.

5. Upon searching the jeep, the police party headed by the then

Deputy Superintendent of Police - Shri Sultan Singh found two

packets containing 6.25 kgs of opium and 9 kgs of opium milk.

Those packets were seized after drawing 50-gram samples from

each packet. The samples as well as the remaining substance

were sealed with a ring with the inscription "RR" belonging to one

Rajaram. The Deputy Superintendent of Police registered an F.I.R

under sections 4 and 9 of the Act of 1878 on the same day at

Police Station Geda against the accused respondents herein.

6. Charges were framed and the accused respondents denied

the charges against them and asked for a trial. During the course

of the trial, ten prosecution witnesses and two defence witnesses

testified, out of which, PW- 2 Taga Ram and PW - 4 Sagar Ram

turned hostile.

7. PW-1 Sultan Singh (Dy. S.P.) stated that based upon the

information received from undisclosed informant, he lead a team

of 8 police persons to set up a nakabandi near Batadu police post,

where the aforementioned interception was made. He testified

that he affixed seal on the samples collected and handed over the

seal and the samples to the police personnel. During cross

(3 of 9) [CRLA-228/1990]

examination, he also admitted that even though the sample

presented before the trial court does not appear to have been

tampered with, the seal affixed by him is not intact, probably due

to passage of a long period of time.

8. PW-10 Jalam Singh though supported the prosecution story

but during cross-examination stated that the ring with inscription

"RR" that was used as the seal belonged to Rajaram and remained

in his possession after the seizure rather than police custody.

9. PW-7 Rajaram testified that after the seizure, the sample

remained with one Gani Mohammad, who was the malkhana

incharge. PW-9 Gani Mohammad testified that he handed over the

sample to Narnaram on 21.04.1985, while PW-6 Narnaram stated

that he received the sample from Rajaram on 21.04.1985 and

handed over the same to Pemaram the next day, i.e., on

22.04.1985.

10. PW- 5 Pemaram corroborated the receipt of the sample from

Narnaram and stated that he handed it over to Hanuman Singh on

the same day itself. PW-3 Hanuman Singh corroborated the fact of

receiving the sample at Barmer and submitting it at Laboratory at

Jaipur on 24.04.1985.

11. PW-8 Purshottam recollected the events of the seizure in his

statement.

12. From the defence's side, DW-1 Chandan Singh testified that

Respondent no. 1 Bhabhoot Singh was his relative and had come

to his home to get his daughter's marriage fixed. He stated that

the police came to his house at wee hours and arrested Bhabhoot

Singh from his house.

(4 of 9) [CRLA-228/1990]

13. After appreciating the evidence on record, the trial court

acquitted all three accused respondents per viam order dated

29.01.1990, which is subject matter of present appeal.

14. The learned Public Prosecutor made six-fold submissions to

show that the trial court has accepted flimsy grounds raised by

the accused persons and acquitted them. Firstly, the learned

Public Prosecutor submitted that the trial court has erred in

holding that since the jeep was not owned by the accused

respondents and they ran away while the recovery was made from

the jeep, the recovery cannot be linked to the respondents.

15. Mr. S.K. Bhati argued that secondly, the owner of the vehicle

in question was not required to be implicated or made accused as

per Section 9 of the Act of 1878. Moreover, since the respondents

were sitting inside the jeep in question, they were having

conscious possession of the opium so recovered from the jeep.

16. Learned Public Prosecutor thereafter submitted that the trial

court has erroneously concluded that since neither the name of

the mukhbir has been disclosed nor the information received from

mukhbir has been entered in the roznamcha report, the Deputy

Superintendent of Police did not receive any information at all. He

emphasised that the Deputy Superintendent of Police was under

no legal obligation to do the same.

17. Further, it has been argued by learned Public Prosecutor that

merely because seal affixed on the samples has been found

loosened, the trial court should not have reached the specious

conclusion that the sample has been tampered with. He argued

that the samples had exchanged many hands before they were

brought before the Court and in this process, seals can be

loosened.

(5 of 9) [CRLA-228/1990]

18. Furthermore, it was the assertion of the learned Public

Prosecutor that the veracity and legality of an investigation

conducted by an investigating officer, who otherwise had the

jurisdiction to investigate the matter, cannot be questioned solely

by virtue of the fact that the rank of such investigating officer is

below the rank of the seizure officer in the present case.

Therefore, the trial court's conclusion that the investigating officer

must have felt compelled to file the charge-sheet against the

accused respondents is absolutely untenable.

19. Lastly, it is the stand of the learned Public Prosecutor that

merely on ground of a small delay, the accused respondents could

not have been acquitted by the trial court. Had a question been

put to the Deputy Superintendent of Police during cross-

examination as regards the delay of four days in presenting the

FIR (which was filed on 31.03.1985) before the Magistrate (on

04.04.1985), he would have satisfactorily explained the same.

20. Mr. R.S. Chouhan, learned counsel for the respondents, on

the other hand, submitted that the statements of the then Deputy

Superintendent of Police - Sultan Singh (PW - 1), Rajaram (PW -

7), Gani Mohammad (PW - 9), Jalam Singh (PW- 10), clearly

indicate that after the seizure, the samples were handed over to

PW - 7 along with his ring that was used as the seal to secure the

samples of the material seized from the respondents and both -

the samples as well the seal, remained in his possession from

31.03.1985 till 21.04.1985, before being deposited for FSL at

Jaipur on 24.04.1985.

21. Mr. Chouhan further argued that the statement of PW- 1

clearly establishes that firstly, the seal was affixed at the centre of

the envelope which effectively rendered it useless, and secondly,

(6 of 9) [CRLA-228/1990]

the witness has admitted that the seal was not found affixed at

the correct place; it was rather torn at three edges and barely

held together by an all-pin.

22. Learned counsel for respondents relied upon the judgment

dated 23.01.1980 rendered by Hon'ble the Supreme Court in the

case of State of Rajasthan vs. Daulat Ram reported in AIR

1980 (SC) 1314 to support his contention that the onus to prove

that the seal remained intact at all the links from the seizure stage

until the seized sample reaches the public analyst lies with the

prosecution.

23. It is, therefore, the contention of the learned counsel for the

respondents that the probability of the sample having been

tampered with is too high to be ignored and the trial court has

correctly accorded the benefit of doubt in the favour of accused

respondents.

24. Heard the rival counsel and perused the material available

on record.

25. So far as the first argument of Mr. S.K. Bhati that owner of

the jeep was not required to be made a party is concerned, this

Court finds that the Act of 1878 does not draw any inference with

regards to the liability of the owner of the vehicle from which

recovery has been made, nor does it mandate that the owner of

the vehicle in question be implicated or made a co-accused in the

case.

26. Under the provisions of Sections 4 and 9 of the Act of 1878,

"possessing, transporting, importing or exporting, or selling" etc.

of opium has been made an offence. In the present case, the

accused respondents were found to be in conscious possession of

(7 of 9) [CRLA-228/1990]

the opium and opium milk in question and involved in transporting

the same.

27. Moreover, the fact of making the owner of the vehicle a

party to the case would have essentially no relevance to the

culpability of the accused respondents and hence, the reasoning of

the trial court that the recovery cannot be linked to the

respondents merely because they were not the owners of the

intercepted vehicle is not sustainable. That apart, the purported

lapse on the part of Investigating Officer cannot give immunity to

the accused persons who were having indisputable possession of

the opium.

28. Further, the trial court has faltered in assuming on the basis

of conjecture and surmise that since the Deputy Superintendent of

Police did not record the information in roznamcha, he must not

have received it. As a matter of prudence, police personnel do not

disclose the name of their informant to maintain secrecy. The

assumption that the Deputy Superintendent of Police did not

receive any information regarding illicit trade of opium flies right

out of the window in the face of the statements given by multiple

prosecution witnesses, so also the fact that illicit opium was

actually seized at the nakabandi. The seizure itself is not illegal or

without jurisdiction. Simply because the information had not been

entered in roznamcha, the recovery from respondents cannot be

ignored.

29. The argument of sample tampering has been dealt with in

subsequent paras of this judgment.

30. This Court is of the opinion that the investigation cannot be

believed to be lopsided by virtue of the investigating officer being

an officer below the rank of the seizure officer. There is no

(8 of 9) [CRLA-228/1990]

statutory mandate under the Act of 1878 that puts an embargo

upon a police officer of the rank of SHO to carry out an

investigation. Hence, this reasoning is flawed and conclusion is

baseless.

31. Finally, the minor delay of four days in presenting the FIR

before the magistrate cannot be considered substantial or material

in determining the liability of the accused respondents, nor can it

be a basis for the acquittal of the respondents especially when the

recovery and seizure has been proved beyond the pale of doubt.

The minor delay is not fatal to the prosecution's case.

32. Adverting to the argument relating to sample tampering

advanced by learned Public Prosecutor, this Court is of the opinion

that based on the statements of prosecution witnesses, an

indisputable and unbreakable chain of custody of the seized

samples has not been established. It is pertinent to note that the

Deputy Superintendent of Police collected only one sample of the

opium and opium milk in question.

33. The accused respondents were thus deprived of their

material right to get a re-test conducted from another secured

sample in their defence for the purpose of disputing the veracity of

the FSL report and proving that the material seized from them

was not opium / opium milk.

34. What is most appalling in the present case is that the

samples so seized and sealed, as well as the ring that was used to

affix seal on the samples, were both handed over to PW-7 -

Rajaram and the same remained in his custody for approximately

three weeks (from 31.03.1985 till 21.04.1985). This lapse which

may be unintentional is enough for the court to doubt the FSL

report. Rather, the prosecution has failed to prove that the chain

(9 of 9) [CRLA-228/1990]

remained intact, particularly in the teeth of contradictory

statements of PW-9 Gani Mohammad and PW-6 Narnaram, so also

the admission of PW-1 that the seal on the seized samples was

not found to be the same as was fixed in the first place.

35. In the case of State of Rajasthan vs. Daulat Ram (supra),

it has been clearly laid down by Hon'ble the Apex Court that it is

the burden of the prosecution to prove the link evidence

unequivocally and beyond reasonable doubt. This Court is of the

opinion that under these circumstances, the trial court was right in

according the benefit of doubt in favour of the accused

respondents and acquitting them, especially when no other

incriminating material was found against them.

36. The veracity and authenticity of the FSL report is highly

questionable due to the defective procedure which has resulted in

the loss of substantial rights of the accused respondents to defend

themselves adequately.

37. Be that as it may.

38. The impugned order came to be passed on 29.01.1990 and

more than 30 years have since passed. Hence, interest of justice

warrants that small error(s) in reasoning or the conclusion arrived

at by the trial Court be ignored.

39. Considering the lapse of a considerable amount of time and

in the absence of any other incriminating material against the

accused respondents, this Court does not find it expedient to

reverse the impugned judgment of the trial court.

40. The appeal is, therefore, dismissed. The record be sent to

the trial Court forthwith.

(DINESH MEHTA),J 2-Arvind/-

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