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2000 DIGILAW 247 (PNJ)

Gurmej Singh v. State of Punjab

2000-03-01

V.K.BALI

body2000
JUDGMENT V.K. Bali, J. - This revision has been directed against the order of conviction and sentence recorded by Judicial Magistrate Ist Class, Zira dated 19th of December, 1986, vide which the petitioner herein was tried under Section 9 of Opium Act and sentenced to undergo R.I. for a period of two and half years and a fine of Rs. 5,000/- and in default thereof to further undergo R.I. for three months, which was confirmed in appeal by the learned Additional Sessions Judge, Ferozepur vide his order dated 18th of August, 1987. 2. The allegation of the prosecution has been that the petitioner Gurmej Singh was found in possession of 50 kgs. of opium of 3rd of November, 1982 when Sub Inspector Kanwaljit Singh alongwith ASI Tarlok Singh and other Constables was going from Makhu to Chakkian on patrolling in a government vehicle. When the police party reached the turn of river bank in the area of Purana Makhu, petitioner was seen coming from Harike side via river bank on cycle. On seeing the police party, he tried to return but on suspicion he was stopped and searched. From the carrier of the cycle a gunny bag was recovered which was found to contain opium weighing 50 kgs. Out of the recovered contraband samples were drawn and sealed. They were taken into possession vide memo Ex. PA alongwith the remaining opium and put into two tin boxes. Information Ex. PB was sent to the Police Station on the basis of which formal F.I.R. Ex. PB/1 came to be recorded. Rough site plan of place of recovery Ex. PC was also prepared. 3. With a view to substantiate its case the prosecution examined PW1 ASI Arjinder Singh and PW2 SI Kanwaljit Singh. It also tendered into evidence report of Chemical Examiner Ex. PD, affidavit of MHC Puran Singh Ex. PE and affidavit Ex. PF of Constable Ram Parkash. 4. The accused in his statement recorded under Section 313 of the Code of Criminal Procedure denied allegations made by the prosecution and pleaded false implication. He examined in his defence DW1 Mohinder Singh and DW2 Balbir Singh. PD, affidavit of MHC Puran Singh Ex. PE and affidavit Ex. PF of Constable Ram Parkash. 4. The accused in his statement recorded under Section 313 of the Code of Criminal Procedure denied allegations made by the prosecution and pleaded false implication. He examined in his defence DW1 Mohinder Singh and DW2 Balbir Singh. As mentioned above, after appreciating the evidence led by the prosecution and the defence, the learned trial Judge came to the conclusion that the petitioner was found in possession of 50 kgs of opium and, thus, convicted and sentenced him for the period already mentioned above. 5. In support of the revision which has been filed it has, inter alia, been pleaded in the grounds of revision that the conviction is based on insufficient evidence and that no independent person was joined from the public. It has further been pleaded that PW2 Kanwaljit Singh SI is inimical to the petitioner and that DW2 Balbir Singh, who is a close relation of the petitioner, has filed a complaint against SI Kanwaljit Singh. Yet, there was another case pending against Balbir Singh and the petitioner is pursuing the cases of Balbir Singh. The petitioner has, thus, been falsely involved in this case. It was further pleaded that the verification of the affidavits of prosecution witnesses is not in accordance with Section 297 of the Code of Criminal Procedure and the High Court Rules Vol. IV, Chapter 12-B. It has further been pleaded that the petitioner was, in any case, entitled to the benefit of sections 360 and 361 of the Code of Criminal Procedure and sections 4 and 6 of Probation of Offenders Act. 6. I have gone through the judgments of the Courts below and perused the record which is available. 7. After giving a considerable thought to the contentions raised in the memorandum of revision, mention whereof has been made above. I find absolutely no substance in this revision petition. 8. It is true that the conviction in the present case is based upon the evidence of the official witnesses. It may be desirable that independent persons should be joined if possible. In a case where independent witnesses are not joined at the most it can be said that the court should appraise the evidence of police officers with more care and caution. It may be desirable that independent persons should be joined if possible. In a case where independent witnesses are not joined at the most it can be said that the court should appraise the evidence of police officers with more care and caution. It requires to be mentioned here that both the Courts have returned a firm finding that the statements of the official witnesses are consistent on all material particulars. As would be clear, the prosecution version itself is that the police party was going for patrolling and it was all of a sudden that the petitioner was found seen coming from Harike side via river bank on cycle. Seeing the police, he tried to turn. It is on suspicion that he wa stopped and searched. It is, thus, not a case where the police party might have had prior information of the petitioner being in possession of contraband with him and ought to have joined with it an independent witness. That part, it cannot be said even on the basis of provisions in the Code of Criminal Procedure or on the basis of any binding judicial precedents that the statements of police officers/officials cannot be believed or for that matter unless an independent witness is joined. Prosecution must fail in every case. The statements made by the Police Officers who were examined in this case are quite consistent. Their evidence corroborates the prosecution version on all materials particulars and inspires confidence. Few but insignificant variations in their statements could well be due to time that elapsed between recovery and when they actually came to depose before the court. 9. In so far as the alleged enmity of DW Baljit Singh with SI Kanwaljit Singh is concerned, suffice it to mention that if it was a case of frame up, why DW2 Baljit with whom SI Kanwaljit Singh is stated to have enmity was not involved. For that reason alone it does not sound to reason that the petitioner who is only a relation of DW2 Balbir Singh should have been involved rather than DW2 Balbir Singh. Further, it may not be impossible but was certainly highly improbable for the SI Kanwaljit Singh PW2 to have planted a huge quantity of opium i.e. 50 kgs. That apart, the learned trial Court has given reason to discard the statements of defence witnesses. Further, it may not be impossible but was certainly highly improbable for the SI Kanwaljit Singh PW2 to have planted a huge quantity of opium i.e. 50 kgs. That apart, the learned trial Court has given reason to discard the statements of defence witnesses. In so far as DW1 Mohinder Singh is concerned, it has been observed by the learned trial Judge that when he returned to his village, he neither informed the parents of the accused nor Balbir Singh DW2. Both the defence witnesses neither appeared before the higher authorities nor filed any application or representation with regard to the alleged highhandedness of the police officials and kept mum all through. 10. In so far as verification of the affidavit of MHC Puran Singh Ex.PE is concerned, the Court finds no defect therein. The verification when translated into English reads thus :- "I hereby declare that my affidavit is true and pure. I have not kept anything concealed in my affidavit. I have given my affidavit in my full senses." 11. As per sub-section (2) of Section 297 of the Code of Criminal Procedure, affidavit shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the later case, the deponent shall clearly state the grounds of such belief. It has not been pleaded in the grounds of revision that the contents of the affidavit do not disclose knowledge of the deponent. All that has been stated is that verification does not disclose his personal knowledge. This ground pleaded in the memorandum of revision has to be rejected as the main body of the affidavit discloses personal knowledge of the deponent and if that be so, when in the verification it is mentioned that the contents of the affidavit are pure and true and nothing at all has been concealed, it would be sufficient compliance of provisions of sub-section (2) of Section 297 of the Code of Criminal Procedure. 12. In so far as giving benefit to the petitioner of the provisions of sections 4 and 6 of the probation of offenders Act is concerned, suffice it to say that the petitioner was found in possession of 50 kgs. of opium. 12. In so far as giving benefit to the petitioner of the provisions of sections 4 and 6 of the probation of offenders Act is concerned, suffice it to say that the petitioner was found in possession of 50 kgs. of opium. He certainly deserves no benefit of probation as contained in the Probation of Offenders Act. However, in view of the fact that the petitioner is facing trial or has been in the appellate Court and in the revisional court ever since November, 1982, the ends of justice will be met if he is sentenced to undergo R.I. for a period of two yeas instead of two and half years R.I. as ordered by the Courts below. 13. In view of the discussion made above, this revision succeeds partly. The order of conviction recorded by the trial Court and confirmed by the learned Additional Sessions Judge, Ferozepur is confirmed but so far as the sentence is concerned, the same is reduced from two and half years to two years. The petitioner shall also pay fine as imposed by the trial Judge and shall also face consequences of non-deposit of fine. While admitting this revision, the petitioner was admitted to bail. His bail bonds are cancelled. He shall be arrested to serve the remaining sentence. Revision partly allowed.