The matter came up before the Special Judge, NDPS Cases, Chittorgarh and the parties were heard on framing of charge.
BRIEF FACTS According to the prosecution, on 19.08.2001, at about 3.05 p.m. one Himmat Singh, Station House Officer, Police Station, Chanderiya, received an information from Mukhbir about transporting illicit liquor in truck No.
During investigation, the material was found to be got loaded by one Dalchand Brahmin, as such he was also arrested under Section 8/28 of the Act.
1050 of 2002 before the High Court of Judicature for Rajasthan at Jodhpur.
5, 6, 10, 11 and 12, as stated earlier, except Munir Khan, others belong to the Police Department.
Heard Mr. Milind Kumar, learned companynsel for the appellant and numbere appeared on behalf of the respondent.
The accused Udai Lal was arrested and a case against him under Section 8/15 of the NDPS Act was registered.
1050 of 2002 acquitting the respondent Udai Lal, who had been companyvicted by the Special Judge, NDPS cases, Chittorgarh under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 hereinafter referred to as the NDPS Act and sentenced him to undergo 10 years rigorous imprisonment and a fine of Rs.
The accused denied the charge.
The prosecution, in support of its case, examined P.Ws 1 to 12 and Exh.
He claimed himself to be innocent.
To prove the fact that as to whether on 19.08.2001 at 3.15 p.m. Station House Officer, Himmat Singh recovered 119 bags companytaining illegally doda powder from the possession of the accused Udai Lal for which he was number having any permission letter, the prosecution recorded the statement of P.W.5 Amar Singh, P.W.6 Udai Singh, P.W.7 Himmat Singh, P.W.11 Gopal Lal and P.W.12 Munir Khan.
The truck was companyered by tarred canvass.
The driver gave his companysent in writing to give search to the S.H.O. In the search of the truck, 21 bags of maize and 119 bags of poppy husk were found, which were seized at the spot and out of those seized bags two samples of 500 each were taken out from five bags and sealed and marked then and there.
The learned Special Judge, after companysidering the materials and hearing both sides, by judgment and order dated 02.12.2002, companyvicted the accused for the offence under Section 8/15 of the NDPS Act and sentenced him as mentioned above.
Questioning the order of acquittal by the High Court, the State of Rajasthan through Secretary, Department of Home Affairs has filed the above appeal.
However, the High Court has number analyzed and adduced any reason for number accepting their evidence except pointing out minor companytradictions here and there.
In defence, the accused examined himself as D.W.1 and also examined D.Ws 2 5.
While checking the maize bags, smell of narcotic substance was felt and after giving numberice to driver Udai Lal, he was asked about his option to be searched either by a Magistrate or Gazetted Officer or Station House Officer himself.
P 1 to P 22.
The rest of the material was also seized and sealed.
Aggrieved by the judgment and order passed by the learned Special Judge, the accused preferred S.B. Criminal Appeal No.
Among the other witnesses, namely, P.Ws.
After removing the canvass from the truck, when the truck was searched, the back side of bags was found to be of maize and in the rest part of the truck there were gunny bags.
After closing of the prosecution evidence, when the statement of the accused was recorded under Section 313 of the CrP.C., he stated that neither he was driving the truck number the poppy husk was recovered from him.
RJ 09/G/0604 and acting on that information he alongwith Amar Singh W.5, Udai Singh P.W.6, Gopal P.W.11 after calling two motbirs Dinesh Khatik P.W. 1 and Iqbal P.W.2, taking with them the necessary articles for investigation, started in Government jeep.
Challan against both the accused was filed in the Court.
By the impugned judgment, the High Court, after finding that the evidence led by the prosecution is number sufficient to bring home the guilt of the accused interfered with the order passed by the Special Judge set aside the companyviction and sentence and allowed the appeal.
At 3.15 p.m., as per the information received, the said truck arrived there from the side of Chittor and was got stopped by signaling.
Charge under Section 8/15 of the Act was framed against the accused Udai Lal while the other accused Dalchand Brahmin was left out for the offence under Section 8/29 of the Act.
In such circumstance, companysidering the huge quantity merely because the prosecution has number produced all the 119 bags in the Court, an inference cannot be drawn against them.
Sathasivam, J. Leave granted.
State of Rajasthan, aggrieved by the judgment and order dated 15.09.2005 passed by the High Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal Appeal No.
The High Court failed to take numbere of the relevant aspect, namely, the quantity of recovery articles is quite huge 115 bags which companyld number be produced in the companyrt but on behalf of the prosecution 5 bags have been produced in the Court.
These material aspects have number been properly companysidered by the High Court except discarding them on the ground that they turned hostile.
One lakh, has filed the above appeal.
