J.P. Jain, J.
1. This revision is directed against the order of the Sessions judge, Bhilwara by which he unheld the order of conviction passed by the City Magistrate, Bhilwara on 30.7.71 convicting the petitioners under Section 4/9. Opium Act, 1876 and sentencing each of them to six months' rigorous imprisonment.
2 Shri Ishwar Sinch (P.W. 5) Station House Officer, Bhilwara, received an information on 28.4.69 that some persons were come from Madhya Pradesh and going to Ajmer via Bhilwara with opium Accordingly he accompanied by some of the Sub Inspectors and consumables went to the bus stand where he found the time petitioners. He suspected them and made a search. He found opium in their possession Sabir Ali was found in possession of opium weighing 360 Kgs. Binshi Lal had 3.70 Kgs. of opium while he recovered 1.24 Kgs of opium from the prosession of Babhoot Ram He prepared recovery memos Ex. P 1/1 Ex P.1/2 and Ex. P/1/3 and the recovery was attested by two witnesses Rampal and Niaz Mohammed. He bid taken out seven specimens from the opium recovered from the petitioners and sent them for chemical examination to the Public Analyst. According to the report of the Public Analyst Ex. P/7 they were found to be opium AH the three petitioners were then challaned in the court of City Magistrate. The prosecution examined five witnesses including one Man Singh constable. The accused denied the recovery of opium and pleaded not guilty. The learned Magistrate on a consideration of evidence found the petitioners guilty. He convicted and sentenced them as aforesaid The petitioners approached sessions Judge, Bhilwara in appeal. The learned appellate court agreed with the view taken by the learned Magistrate and dismissed the appeal. The petitioners have come in revision The revision application was admitted on 31.1.72 and the petitioners were released on bail.
3. Learned Counsel appearing on behalf of the petitioners has contended that according to the prosecution evidence the samples of the opium allegedly recovered from the accused persons were sent to the Public Analyst through Man Singh (P.W. 2) Man Singh has deposed that he took seven articles from Bhilwara to office of the Superintendent of Police, Bhilwara. From there he went to Jaipur to the office of the Public Analyst. Wren he wanted to deliver those articles on 7.6.70 the Public Analyst refused to accept the delivery as there were some defects. He brought back the packet and after removal of the defects firm the office of the Superintendent of Police, Bhilwara, he went back to the office of the Public Analyst on 12.5.70, On that date he delivered the packet containing seven articles. On this premise the learned Counsel argued that the prosecution has failed to show as to what was the defect pointed out by the Office of the Public Analyst when Man Singh (P.W. 2) wanted to deliver the packet on 7th May, 70. It has further been submitted that there is no evidence led by the prosecution to prove that the samples of the alleged opium reached the office of the Public Analyst in the same condition in which it was taken by the police officer. Another contention raised by Mr. Basanti is that the recovery was made on 28.4,69 but the articles were sent, according to Man Singh, (P.W. 2) on 35.0 In answer to this contention Mr. Basanti learned Counsel appearing for the State submitted that the witness has wrongly mentioned the year 1970, it was on 3.5.69, when the articles were sent and were actually delivered to the Public Analyst on 12.5.69. These report of the Public Analyst Ex. P/5 has been referred to in this connection. From the report it appears that the articles reached the office of the Public Analyst on 12.6.69. It is thus clear that the error is in the statement made by Man Singh. this error is of no importance and as such no capital can be made out of this.
4. However, it is admitted by Mansingh (P.W. 2) that he left Bhilwara on 3.5.69. 4th and 5th May, 69 were holidays on account of untimely demise of the President of the Country. On 6th May as well the office was closed when he went there He reached the office on 7th May, 1969 and want to deliver the picket, to the Public Analyst but it was refused on the ground of some detect. The prosecution has not attempted to clarify as to what was the defect. Whether the defect was of a formal nature or something relating to the breaking of the seal However, it is admitted that Man Singh went back to Bhilwara and after removal of the defect pointed out, he went back to Jaipur and delivered the packet on 12.5.69. Though in the cross-examination he deposed that he delivered the packets in the same state in which they were given to him. This statement does not as well advance the statement of Man Singh any further The prosecution has failed to bring out on record the actual defect on the basis of which the packet was not accepted by the office of the Public Analyst on 7.5.69 There is no other evidence in this record. Mr. Basanti concedes that this failure on the part of the prosecution leaves us in the realm of imagination as to what was the actual defect which made the Pubic Analyst not to accept the packet on 7th May, 1969 This failure on the part of the prosecution has given an occasion to the learned Counsel for the accused to argue that the possibility of tempering with the packets cannot be ruled out and it is submitted that it might be the defect on the basis of which the delivery was refused. I have also perused the statement of Shri Ishwar Singh (P.W. 5). He too is silent on this point He deposes that the packets were sealed but be does not say that they were delivered to Mansingh in the same manner in which he recovered and sealed them Learned Counsel for the petitioners placed reliance on Ukha Khan v. State of Maharashtra AIR 1963 SC 1531 and Ratan Lal v. The State 1966 RLW 451. Their Lordships of the Supreme Court observtd:
Evidence regarding the dealing with the phial since it was sealed and it was submitted for ex inclination of the Chemical Examiner may appear to be formal; but it has still to be led in a criminal case to discharge the burden which lay upon the prosecution.
5. These observations of their Lordships of the Supreme Court were followed by the Division Bench of this court in Ratan Lal v. State. 1966 RLW 451, This court observed:
That no doubt the evidence that the sample of the incriminating article reached the hands of the chemical examiner in the same condition in which it was taken by the police officer is formal, yet it cannot be dispensed with and in the absence of such an evidence it is open to take a plea that the chemical examination report of the public analyst cannot be read against him.
6. In the present case Mansingh constable is the parson who carried the samples from Bhilwara to the office of the Public Analyst but he stated that there were some defects relating to the packet and as such the Public Analyst did not accept the packet from him. He had to go back to Bhilwara and after getting the defect removed he brought it back on 12.5.69 This evidence fails to disclose the defect painted out by the Public Analyst. In the absence of evidence it cannot be assumed that the defect was not one which related to the breaking of the seal. In this view of the matter it is difficult to sustain the conviction of the accused persons.
7. The articles have found to be opium. The petitioners have sought the benefit of doubt and as such the articles shall stand confiscated and the order passed by the trial Magistrate relating to the articles shall stand.
8. The revision application succeeds. The conviction of the petitioners is set aside The petitioners are acquitted. They are on bail. They need not surrender to their bail bonds which shall stand discharged.