Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 468 (PNJ)

Malkiat Singh v. State Of Punjab

2000-05-01

V.K.BALI

body2000
Judgment 1. Challenge in the present revision is to an order of conviction and sentence recorded by learned Sub-Divisional Judicial Magistrate, Bamala, dated November 29, 1985, vide which petitioners herein were held guilty of an offence under Sec.9 (a) of the Opium Act and sentenced to undergo RI for ten months and to pay fine of Rs.750.00 or in default thereof, to further undergo RI for two months. The order of conviction and sentence has since been confirmed by learned Additional Sessions Judge, Bamala, in an appeal that came to be decided on August 14,1987. 2. Briefly put, the prosecution case has been that on March 3, 1982 Ranjit Singh, ASI along with other police officials was present in connection with investigation of case FIR No.19 of 1982 under Sections 457/380 of the Indian Penal Code pertaining to Police Station Bhadaur near grain market in Village Tulewal. One tractor Hindustan 35 HP along with Trolley was seen coming from the side of Tulewal which was being driven by one person and two others were sitting by his side. On seeing the police party, the driver of tractor tried to speed up the tractor to give a slip to the police party. The police party, however, followed the tractor and stopped it. Malkiat Singh - petitioner was found driving the tractor and other petitioners were found sitting on his sides. In the meanwhile, one person, namely, Malkiat Singh (Hamek Singh?), was seen coming form the side of Village Tulewal on cycle and he was also associated with the police party. The search of tractor - trolley conducted by ASI Ranjit Singh led to recovery of 50 bags of poppy - husk. Each bag was found containing 40 kgs; of poppy - husk.250 grams of poppy - husk was separated from each bag as sample which were made into separate parcels. Remaining contents of 50 bags were separately parcelled and taken into possession. Inasmuch as the petitioners did not show any permit for keeping the poppy- husk in their possession, formal FIR ex. PD/i was recorded by Gurdit Singh HC. The Investigating Officer also prepared site plan, Ex. PE of the place of recovery. After receipt of report of Chemical Examiner, petitioners were tried under Sec.9 of the Opium Act, with the result, indicated above. 3. PD/i was recorded by Gurdit Singh HC. The Investigating Officer also prepared site plan, Ex. PE of the place of recovery. After receipt of report of Chemical Examiner, petitioners were tried under Sec.9 of the Opium Act, with the result, indicated above. 3. In its endeavour to bring home the offence against the petitioners, prosecution examined Harbans Singh Head Constable as PW1, Gurdit Singh, HC as PW2 Sukhdev Singh, PW3 and Ranjit Singh, ASI, PW4 and tendered into evidence reports of Chemical Examiner, Exs. PF and PF/1 as also affidavits Exs. PG and PH. Hamek Singh independent witness was given up on the ground that he had since been won over by the petitioners. 4. When examined under Sec.313, Cr. P. C. , petitioner, while denying the incriminating material put to them, pleaded false implication. They examined three witnesses in defence, i. e. , DW1 Bola Nath, DW2 Labh Singh and DW3 Harnek Singh. 5. I have heard Mr. A. S. Sandhu, Additional P. P. for the State of Punjab and examined the record of the case, which is available. It has been pleaded in the memorandum of revision and so argued that Harnek Singh, who was independent witness and who, according to the prosecution version, had joined the police party at the time of recovery, did not support the prosecution case. In fact, he appeared as DW3 and stated that while he was returning to the village, the police party met him on the way and he was given lift in the jeep by stating that police party was to go towards the side of his village and when they reached village Mujeke, police party had gone towards one deserted room (Khola) where 50 bags of poppy husk were found lying and many persons had collected there. Harnek Singh had also stated that his thumb impression was obtained by the police party saying that recovery of 50 bags had been effected in his presence from a Khola and that no recovery of poppy husk was effected in his presence from the petitioners in the area of village Tulewal. Harnek Singh had also stated that his thumb impression was obtained by the police party saying that recovery of 50 bags had been effected in his presence from a Khola and that no recovery of poppy husk was effected in his presence from the petitioners in the area of village Tulewal. It has then, been pleaded that the prosecution evidence is directly in conflict with the facts stated in Ruqa and this was sufficient to doubt the prosecution case as also that there are so many infirmities and contradictions in the prosecution story which clearly prove that prosecution had miserably failed to prove its case. It has also been pleaded that non - examination of Hamek Singh was sufficient to establish that petitioners had been falsely involved in this case as also that the defence witnesses had proved the innocence of the petitioners and that their statements could not be discarded on the mere ground that they were covillagers. It has also been pleaded that affidavits, Exs. PG and PH were not proper and could not be taken into consideration in view of the fact that endorsement made in the affidavits aforesaid would reveal that the deponents had deposed on information and knowledge and it was not separately mentioned as to which portion was according to their knowledge and which portion was according to their information. It has also been pleaded that the report of Chemical Examiner was not specifically put to the petitioners in their statements under sec. 313, Cr. P. C. and that benefit of probation under provisions of Probation of Offenders Act ought to have been given to the petitioners. 6. After hearing the learned State counsel and examining the records of the case in light of grounds taken in the memorandum of revision, I find no merit in this revision whatsoever. No doubt, Harnek Singh was not produced by the prosecution, as in view of the statement made by learned Public Prosecutor; he had been won over by the petitioners. He, however, appeared as a defence witness. It is significant to mention that when cross-examined by the PP, he had to admit that his thumb impression were obtained by the police party, even though he further went on to say that no recovery was effected in his presence from the petitioners in the area of village Tulewal. He, however, appeared as a defence witness. It is significant to mention that when cross-examined by the PP, he had to admit that his thumb impression were obtained by the police party, even though he further went on to say that no recovery was effected in his presence from the petitioners in the area of village Tulewal. If thumb impressions of this witness had been obtained by the police party for recovery of 50 bags of poppy husk effected in his presence from a Khola and not from the petitioners, he ought to have brought this matter to the notice of higher authorities which he did not. Further, there is nothing to disbelieve the statement of Investigating Officer, who clearly stated that he had recorded the statement of Harnek Singh. No enmity at all has been alleged against anyone from the police party and it may be recalled that it is a case of recovery of 50 bags of poppy husk consisting of 40 Kgs. each. In totality of the facts and circumstances if this case, this court is of the considered view that Harnek Singh had in fact any reality been won over by the petitioners. To the - same effect is the finding recorded by the courts below. Cutting of time in ruqa, Ex. PD is a minor issue and does not go to the root of the case and this matter has been discussed by the Trial Court as also the Appellate Court and I find no infirmity in the findings recorded by the courts below. No specific infirmity or contradiction has otherwise been brought to the notice of this Court nor before the first Appellate Court. Insofar as defence version based on statements of DW5 1 to 3 is concerned, the same has elaborately been discussed by the courts below and I find no infirmity in the findings recorded by the Courts below; 7. Coming now to the main issue raised in this revision with regard to affidavits Exs. PG and PH being - not proper, it would be first appropriate to give the endorsement actually appended to the said affidavits. When translated into English, endorsement appended to affidavit, Ex. PG, reads thus: - TIJ Constable Ravinder Singh, 1609, do hereby solemnly affirm and declare that my affidavit is correct according to my knowledge and belief. PG and PH being - not proper, it would be first appropriate to give the endorsement actually appended to the said affidavits. When translated into English, endorsement appended to affidavit, Ex. PG, reads thus: - TIJ Constable Ravinder Singh, 1609, do hereby solemnly affirm and declare that my affidavit is correct according to my knowledge and belief. I have kept nothing concealed in my affidavit not have stated anything falsely. T The endorsement on the affidavit aforesaid would clearly reveal that the verification of affidavit is not based on information. All that has been stated in the grounds of revision, based upon the decision of this Court in Cr1. Revision No.362 of 1985 decided on April 16, 1987 is that the verification of affidavit is required to be either on knowledge or on information and it should show specifically which part of the affidavit is verified on deponents knowledge and which part is verified on deponents information. The verification of affidavit, Ex. PF, as reproduced above, would show that it is not the one part of which might have been verified on deponentts knowledge and other on his information, which ought to have been stated separately. Here the verification is on the basis of knowledge and belief. In fact, from the entire affidavit, no part of it has been verified on the basis of information. 8. Mr. Sandhu, learned counsel; appearing for the State has pointed out that insofar as statements of petitioners under Sec.313, Cr. P. C are concerned, a specific question with regard to reports of Chemical Examination as also contents of affidavits was put to the petitioners. The question reads thus: Q: It is in evidence against you that from the report of Chemical Examiner, Ex. PF and Ex. PF/1 the sample was found to be that of poppy husk. What you have to say about it? Ans : It is incorrect. 9. Present does not seem to be a case where petitioners should be granted the benefit of provisions contained in the Probation of Offenders Act as it is a case of recovery of huge quantity of poppy husk. Finding no merit in this revision, I dismiss the same. Revision dismissed.