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2000 DIGILAW 384 (PNJ)

Roop Chand v. State of Punjab

2000-04-05

R.L.ANAND

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JUDGMENT R.L. Anand, J. (Oral) - This is a Criminal Revision and has been directed against the judgment dated 12.12.1987, passed by the learned Sessions Judge, Faridkot who maintained the conviction and sentence of the petitioner awarded by the trial Court vide its order dated 2.3.1987. The petitioner was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- or in default of payment of fine to undergo further rigorous imprisonment for 3 months. 2. The brief facts of the case are that on 15.1.1984, the police-party headed by ASI Gurdev Singh alongwith constable Malkiat Singh and other police officials was going towards railway level crossing on the Faridkot-Talwandi Road and when the police party was near the octroi post, they saw two persons crossing from the road leading to the Courts. On seeing the police party, both of them ran towards their backside. Both of them were holding Jholas of gunny bag in their hands. Roop Chand petitioner was apprehended whereas his companion succeeded in running away throwing the Jhola on the road. From the personal search of the petitioner 10 kgs opium wrapped in a glazed paper was recovered from his Jhola for which he could not produce any permit. 50 grams opium was separated out of it as sample and, thereafter, the sample and the remaining opium were separately sealed in two parcels with seal mark GSK and the entire aforesaid case property was taken into possession. The sample was sent to the office of the Chemical Examiner who found the same to be opium vide report Ex. PF. On the completion of the investigation, the accused was challaned. 3. On appearance of the accused in the Court of area Magistrate, copies of documents as required under Section 207 of the Code of Criminal Procedure, were supplied to the accused free of costs. A prima facie case under Section 9(a) of the Opium Act was made out against the accused, to which he pleaded not guilty and claimed trial. 4. To prove its case the prosecution examined PW-1 Teja Singh, PW-2 Constable Malkiat Singh, PW-3 ASI Gurdev Singh and tendered into evidence report of Chemical Examiner Ex. PF and the affidavits of formal witnesses Ex. PG and PH. 5. 4. To prove its case the prosecution examined PW-1 Teja Singh, PW-2 Constable Malkiat Singh, PW-3 ASI Gurdev Singh and tendered into evidence report of Chemical Examiner Ex. PF and the affidavits of formal witnesses Ex. PG and PH. 5. The statement of the accused was recorded under Section 313 Criminal Procedure Code and all the incriminating evidence appearing against him was put to him. He denied the allegations of the prosecution and further stated that he has been falsely implicated in this case. He also stated that the police had raided the house of his relation Hans Raj and when nothing was recovered from the house search, he raised objection to this act of the police because his relative Hans Raj was not present at that time in the house and as such he had an altercation with the police party as a result of which he was taken to police station and thereafter a false case was registered against him as well as his relative Hans Raj. 6. In defence, the petitioner examined Ram Parkash DW-1, Bidhi Chand DW-2, Dr. J.R. Suri, DW-3, Dr. G.S. Shergil, DW-4, and constable Harbans Singh DW-5. 7. The learned Magistrate vide judgment and order dated 2.3.1987 came to the conclusion that the opium was taken from the possession of the petitioner and he does not deserve the concession of probation. Resultantly, the petitioner was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo further rigorous imprisonment for 3 months. 8. The petitioner filed an appeal before the learned Sessions Judge who vide his judgment dated 2.12.1987, dismissed the appeal for the reasons given in paras No. 3, 4, 5 and 6 of the judgment which read as under :- "3. Both the witnesses of the occurrence PW-2 Constable Malkiat Singh and PW-3 ASI Gurdev Singh, Investigator, had provided full support to the prosecution case that ten kilograms of opium was recovered from the accused in the manner above referred. Statements of these PWs are quite consistent on the material particulars of the case. None of them had any motivation for the false implication of the accused. The only official position of these witnesses cannot be sufficient to brush aside their evidence which is otherwise worth reliable. Statements of these PWs are quite consistent on the material particulars of the case. None of them had any motivation for the false implication of the accused. The only official position of these witnesses cannot be sufficient to brush aside their evidence which is otherwise worth reliable. The appellants counsel pointed out very minor discrepancies in the statements of the witnesses that according to PW-2 Constable Malkiat Singh, 10 grams of sample had been taken and that he and Hakam Chand constable had chased the accused and that while according to the investigator, sample of 50 grams had been taken and that Hakam Chand and Jai Dev constable had chased the accused. Such like minor discrepancies are bound to occur in the statements of truthful witnesses when these are recorded after a lapse of time. 4. It was also submitted by the appellants counsel that the only independent witness Teja Singh, PW-1, has not supported the case of the prosecution, but if that witness had been won over by the accused, that cannot be made a ground to suspect the evidence of the other witnesses whose evidence has been otherwise found to be worth acceptance. There could be no fun for these witnesses to arrange such a huge amount of opium and to plant against the accused without any purpose, whatsoever. The report of the Chemical Examiner Ex. PF establishes the contents of the contraband substance recovered to be opium. 5. The appellants counsel has also submitted an application to produce a copy of judgment recorded by the Magistrate in case State v. Hans Raj that he was acquitted who had been apprehended at the time the accused was apprehended. He has admittedly run away and was not arrested at the spot by the police. His acquittal in that case can be of no relevance in this case. So, no case is made out to give permission to bring that judgment into evidence at this state. 6. It was also submitted by the appellants counsel that the request of the accused to call the chemical examiner for cross-examination and to get the case property weighted was not accepted by the Trial Magistrate and that it causes prejudice to him. There is no force in this submission as well. The report of the Chemical Examiner had already been brought on the record. There is no force in this submission as well. The report of the Chemical Examiner had already been brought on the record. The submission by the appellants counsel was also made that the affidavits Ex. PG and Ex. PH have not been properly verified as it has not been written at the time of verification that which facts are from the knowledge and from information. Obviously, all these facts deposed in the avvidavits are from their knowledge. There is no such defect in the affidavits as to discard that evidence." 9. I have heard Shri Darshan Lal, Deputy District Attorney, on behalf of the State and have gone through the grounds of revision and am of the considered opinion that both the Courts have rightly relied upon the story of the prosecution and the witnesses of the prosecution, who have no axe to grind against the petitioner. In this case the prosecution was not required to join independent witness because recovery was a chance one. 10. The major ground of attack taken up by the petitioner in the grounds of revision is that other person who fled away from the place of recovery, was Shri Hans Raj. The police put up a separate challan against Shri Hans Raj. The occurrence is of the same date. The Investigating Officer was also the same. The story of the prosecution was that Hans Raj was alongwith the present petitioner Shri Roop Chand and when the witnesses of the prosecution had been disbelieved in the case State v. Hans Raj, the same set of witnesses cannot be relied upon in the present case. 11. In support of his case the petitioner relies upon AIR 1966 Allahabad 19 and 1986(2) RCR 34. Both these judgments are not applicable to the facts in hand. The acquittal of Hans Raj will not operate as a res judicata in the present case for the reason that Hans Raj was not arrested at the spot. Admittedly, according to the version of the prosecution, he allegedly ran away from the place of occurrence by throwing away Jhola. In these circumstances, a reasonable doubt had crept in the story of the prosecution with regard to the fleeing of Hans Raj from the spot. In this background, Shri Hans Raj was acquitted. Admittedly, according to the version of the prosecution, he allegedly ran away from the place of occurrence by throwing away Jhola. In these circumstances, a reasonable doubt had crept in the story of the prosecution with regard to the fleeing of Hans Raj from the spot. In this background, Shri Hans Raj was acquitted. The acquittal of Shri Hans Raj can only be seen in the present case as a matter of fact but the reasons of his acquittal do not debar the Court from convicting the present petitioner Shri Roop Chand. In this view of the matter, I reject the first ground taken up by the petitioner. 12. Second ground taken up by the petitioner in the Grounds of Revision was that link evidence in this case is missing. This is again factually incorrect. The affidavits of formal witnesses are on the record and these affidavits make a complete chain of link evidence. Affidavits have been duly sworn-in and I do not find any illegality in the same. 13. In this view of the matter, I maintain the conviction of the petitioner under Section 9(a) of the Opium Act. However, keeping in view the fact that the petitioner is suffering the agony of the criminal proceedings since 1984 and after a lapse of 15 years it may to be proper to reject the revision of the petitioner in toto. The substantive sentence, however, stands reduced to three months. He will, however, pay Rs. 1,000/- as fine and in default of payment of fine the petitioner will undergo further R.I. for 15 days. 14. With this modification in the matter of sentence, the revision stands disposed of. Let the intimation about the dismissal of this revision be sent to Chief Judicial Magistrate, Faridkot, who shall execute the warrant according to law against the petitioner so that this petitioner may be able to undergo the remaining sentence. Revision dismissed.