The respondent-Dulichand, was convicted under Section 8
read with Section 18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred
to as ‘the Act’) and sentenced to undergo 10 years
rigorous imprisonment with a fine of Rs.1,00,000/-
(Rupees One lakh only), in default whereof, to undergo
further imprisonment for one year, by the Special
Judge, Jhalawar in the State of Rajasthan.
This conviction and sentence was challenged by
the accused by way of an appeal in the High Court and
the High Court has vide its judgment dated 7th January
2002 allowed the appeal, set aside the judgment of the
Special Judge and acquitted the accused. The State of
Rajasthan is before us by way of special leave.
We have heard the learned counsel for the parties
and gone through the record. We find that two primary
reasons which weighed with the High Court in acquitting
the accused-respondent were:-
(i) that there was no evidence to suggest that he
was in conscious possession of the narcotic
substance; and
(ii) it appeared that the opium, after recovery, had
not been kept in safe custody even as per the
prosecution story itself.
We see from the judgment of the High Court that
the observations are fully justified in so far as the
evidence is concerned. It is the conceded position
that the house from where the narcotic substance had
been recovered belongs to Bharmal, the father of the
respondent, and that the house consisted of four rooms
and the narcotic substance had been recovered from the
fourth room which was said to be in possession of the
respondent. We, however, see from the judgment that
the opium had been recovered at point ‘K’ which was at
a distance of 40 feet from Dulichand’s room and the
finding on this aspect is that the part of the house
around point ‘K’ was being used by all the family
members as a way of coming and going and was not
accessible only to the respondent. We have also gone
through the evidence of P.W.3 – Raghunath Pandey, P.W.7
– Prabhu Dayal, the last named, an official witness
from the Department and a member of the checking party,
who went so far as to state that he was not aware as to
the place from where the narcotic substance had been
recovered and did not even know that the room belonged
to the respondent, and finally, P.W. 4 – Bhuwana, one
of the recovery witnesses who along with P.W. 6 –
Bharmal, the father of the respondent were declared
hostile as they did not support the prosecution. We
see from a reading of their statements that there is
nothing to suggest that the respondent was in exclusive
possession of the room at point ‘K’ where the alleged
recovery had taken place.
We have also considered deeply the second reason
advanced by the High Court. This is based on the
premise that the seal under which the samples had been
sealed had been tampered with, which destroyed the
sanctity of the recovery. We have gone through the
evidence of P.W.9 – Bhikam Chand Gupta to whom the
samples had been handed over for safe-keeping and
observe that he was not the in charge for the
Malkhana as the Malkhana was under the charge of the
District Opium Officer, who has not been produced as a
witness. We are of the opinion that the evidence of
P.W. 2 – Sankta Prasad Choudhary, P.W. 8 – Satyaveer
Singh and P.W. 9 – Bhikam Chand Gupta to depose on the
sanctity of the sample, therefore, loses all
significance.
We are also cognizant of the fact, that we are
dealing with an appeal against acquittal, at the
instance of the State, and interference in such a
matter must be rare and far between.
We, thus, do not find any merit in this appeal
which is, accordingly, dismissed.