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2000 DIGILAW 452 (PNJ)

Jagdish v. State Of Haryana

2000-04-27

V.S.AGGARWAL

body2000
Judgment V. S. Aggarwal, J. 1. By this judgment two revision petitions namely Criminal Revision Nos.685 and 736 of 1988, titled Jagdish V/s. State of Haryana and Mangat Ram V/s. State of Haryana can conveniently be disposed of together Since the facts are identical, therefore, they are being taken up together. 2. The relevant facts of the prosecution case are that on 24-1-1988 Sub Inspector Dalip Singh alongwith Head Constable Kanha Ram and other police officials were present near Octroi Post in connection the investigation of another case. Secret information was received that two persons were coming from the side of Dabwali in a car and are in possession of opium. Balbir Singh and Joginder Singh were joined in the raiding party. Picket was held at the crossing of the road leading to Odhan. Dabwali and Kalanwali. After sometime car bearing registration No. HRN-603 came from the side of Dabwali. Petitioner Mangat Ram was driving the same while petitioner Jagdish was sitting on the front seat by the side of Mangat Ram. The car was signalled to be stopped. The search revealed that opium duly wrapped was lying in between both the petitioners on the front seat. It was weighed and found to be 5 Kgs.100 grams was taken as the sample. The Sample and rest of the opium were converted into two parcels and sealed with the seal of BS. The seal after use was given to Balbir Singh. The petitioner was arrested. The formal first information report was got recorded and the case property was deposited in the Malkhana. The representative sample was sent for report of the Chemical Analyst. On receipt of the report that it was opium, the report was submitted to the Court of competent jurisdiction. 3. The learned Sub Divisional Judicial Magistrate, Dabwali framed a charge against the petitioners for the offence punishable under Sec.9 of the Opium Act. The petitioners had pleaded not guilty and claimed a trial. The defence of the petitioners was that they were innocent. They have been impleaded at the instance of Sukhdev Singh who was Member of Legislative Assembly from Kalanwali. Sukhdev Singh had enmity with one Des Raj who is a relative of Mangat Ram. Petitioner Jagdish stated that he is brother of one Ashwani Kumar who is a liquor contractor of Kalanwali. He had been impleaded by the police to have revenge from Ashwani Kumar. 4. Sukhdev Singh had enmity with one Des Raj who is a relative of Mangat Ram. Petitioner Jagdish stated that he is brother of one Ashwani Kumar who is a liquor contractor of Kalanwali. He had been impleaded by the police to have revenge from Ashwani Kumar. 4. The learned trial Court on appraisal of evidence rejected the contradictions in the statements of the witnesses and held that it is established that petitioners were in illegal possession of 5 Kgs. of opium. They were held guilty for the offence punishable under Sec.9 of the Opium Act. Each of them were sentenced to undergo rigorous imprisonment for two years and a fine of Rs.2,000.00 . Indefault of payment of fine, they were to undergo further rigorous imprisonment for four months. Two separate appeals were preferred and the learned Additional Sessions Judge, Sirsa dismissed the same. Aggrieved by the said judgments, the present revision petitions have been lied. 5. The case of the prosecution revolved upon the testimonies of Balbir Singh PW-1, Joginder Singh PW-2. Dalip Singh PW-3 and Kanha Ram PW-4. They testified about recovery of opium from possession 9f the petitioners from the said car. 6. The main dispute herein is as to whether it can be termed that chain of evidence, had been established so as to show that opium was recovered from the petitioners. In this regard basic criticism is regarding the affidavits of Head Constable Mohinder Kumar Ex. PY and Sita Ram Constable Ex. PZ. Admittedly these affidavits do not indicate as to which part was true according to their knowledge and which part was true according to their information. Needless to state that Head Constable Mohinder Kumar in his affidavit has sworn that he had taken the representative sample with seal intact and had handed over the same to Constable Sita Ram vide docket for taking it to the office of Chemical Examiner. So long as the sample remained with him it was not tampered. Constable Sita Ram had sworn that on 6-2-1980 a sealed sample containing opium was given to him by Head Constable Mohinder Kumar and he after obtained docket from the office of Exercise and Taxation Officer delivered the same in the office of Chemical Examiner. On return he gave the receipt to Head Constable Mohinder Kumar. 7. Constable Sita Ram had sworn that on 6-2-1980 a sealed sample containing opium was given to him by Head Constable Mohinder Kumar and he after obtained docket from the office of Exercise and Taxation Officer delivered the same in the office of Chemical Examiner. On return he gave the receipt to Head Constable Mohinder Kumar. 7. A Division Bench of this Court in the case of State of Punjab V/s. Leela Singh considered this controversy. It was held: We have gone through the record of the case and we find that the necessary link evidence is otherwise defective in law. Exhibit PE is the affidavit of MHC Darbara Singh and Exhibit PF is the affidavit of Constable Sukhdev Singh. Both these affidavits bear the verification that the contents of the affidavits were correct. It is not mentioned therein which part of the affidavit was correct according to the knowledge and which part belief. Thus the affidavits being ignored from consideration the prosecution has failed to bring home the guilt of the accused by connecting the incriminating article with him. Thus we find no ground to interfere with the order of acquittal recorded by the Magistrate. Similar controversy was considered by this Court more recently in the case of Swaran Singh V/s. State of Punjab and same was the view expressed as already referred to above in the case of State of Punjab V/s. Leela Singh (supra ). 8. Not only the affidavits are defective the record does not indicate that when the affidavits were tendered the witnesses even were present for cross-examination. 9. The cumulative effect of the aforesaid would be that the said link evidence that the samples were taken and could not be tampered while being removed to the Chemical Examiner is not proved. Once the link evidence is missing, the petitioners are entitled to the benefit of doubt. This is for the reason that it is for the prosecution to prove the same beyond all reasonable doubt. It had not been done. The judgments in question cannot be sustained. 10. For these reasons, the revision petitions are accepted and the impugned judgments are set aside. The petitioners are acquitted awarding them the benefit of doubt. Revision allowed.