JUDGMENT :

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.

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 GJF2292 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-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.

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 o