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2000 DIGILAW 470 (PNJ)

Amrik Singh v. State of Punjab

2000-05-01

V.K.BALI

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ORDER V.K. Bali, J. - This revision has been directed against the order of conviction and sentence recorded by Judicial Magistrate Ist Class, Amritsar, dated 16th of February, 1987 vide which the petitioner herein was held guilty for an offence under Section 9 of the Opium Act and sentenced to undergo R.I. for a period of three years and to pay a fine of Rs. 1000/- or in default to further undergo R.I. for a period of three months. The appeal preferred by the petitioner against the order of conviction and sentence was dismissed by learned Additional Sessions Judge, Amritsar, on 16th of July, 1987. 2. Briefly put the prosecution case has been that on 14th of December, 1982, S.I. Harjit Singh along with Head Constable Gulshan Rai, Constables Kundan Lal and Sawaran Singh and L/NK Gurdev Singh under the supervision of H.S. Sidhu, Commandant 23, B.S.F. Battalion in connection with nakabandi was present near the bridge of defence drain in the area of village Rajatal. At about 4.00 A.M. four persons came from the side of Dauke out of which two were having head weights and two were having weights in their hands. They were challenged by the police party but instead of their stopping, they started firing upon the police party. In self-defence S.I. Harjit Singh fired two shots from his service revolver and Constable Kundan Lal also fired five shots from his .303 rifle. Three persons, however, managed to escape under the cover of darkness towards Pakistan. The petitioner was, however, apprehended by S.I. Harjit Singh with the help of police officials. On his personal search, a gunny bag containing 50 Kgs. of opium was recovered which he was carrying on his right shoulder. Twenty grams of opium was separated as sample from the recovered opium and was put in a small tin whereas the remaining opium was put in drum. Parcels of sample and drum containing opium were sealed with the seal bearing letters HS and were taken into possession vide recovery memo Ex.PA. Intimation (ruqa) was sent to police station on the basis of which formal FIR Ex.PC/1 was recorded. After completion of investigation, report under Section 173 of the Code of Criminal Procedure was prepared and challan was put before the Ilaqa Magistrate. 3. Intimation (ruqa) was sent to police station on the basis of which formal FIR Ex.PC/1 was recorded. After completion of investigation, report under Section 173 of the Code of Criminal Procedure was prepared and challan was put before the Ilaqa Magistrate. 3. In its endeavour to bring home the offence against the petitioner, the prosecution examined ASI Gulshan Rai PW1 and SI Harjit Singh PW2 and tendered into evidence report of the Chemical Examiner and affidavits of formal witnesses Exs.PE and PF. 4. When examined under Section 313 of the Code of Criminal Procedure, petitioner while denying incriminating material put to him pleaded innocence. In his defence he examined DW1 Pritam Singh. 5. I have heard learned Counsel representing the parties and examined the records of the case which is available. It has been pleaded in the grounds of revision and so argued by the learned Counsel that the conviction of the petitioner is based upon the evidence of the official witnesses only and the statements made by the official witnesses are discrepant on all material points. It has then been pleaded that the prosecution story is that the police was acting under the supervision of B.S.F. personnel and was holding naka and yet no signatures of BSF officials were taken on the recovery memo and further that if the case of the prosecution was that the petitioner alongwith others had fired, then they ought to have been prosecuted under Section 307 of the Indian Penal Code. The petitioner was neither prosecuted under Section 307 of the Indian Penal Code nor under the Arms Act. It has also been pleaded that the affidavits of formal witnesses are defective as in the verification the deponents have not stated that the contents are correct on their information, knowledge and belief and that there was unexplained delay in sending the sample to the Chemical Examiner. It has also been pleaded that the defence version is more probable and in view of the facts and circumstances of this, petitioner should have been given the benefit of provisions of sections 360 and 361 of the Criminal Procedure Code and sections 4 and 6 of the Probation of Offenders Act. 6. After evaluating the evidence in light of the grounds of revision and after hearing Mr. A.S. Sandhu, learned PP, I, however, find no merit in this revision. 7. 6. After evaluating the evidence in light of the grounds of revision and after hearing Mr. A.S. Sandhu, learned PP, I, however, find no merit in this revision. 7. Before I might proceed any further in the matter, it would be relevant to mention that so far as appellate Court is concerned, nothing at all was urged except that the formal affidavits were not in accordance with law. This aspect of the matter has been dealt with by the learned Additional Sessions Judge and it has been observed that affidavits Exs. PE and PF tendered into evidence were not defective. Verification on the affidavits runs thus :- "I solemnly affirm that my above statement is correct. Nothing has been concealed in it and none of the part of the statement is false. I had given my statement in my senses." 8. This affidavit was certified by the Magistrate. It was read over and explained to the deponent and deponent had understood the contents of the affidavit before the Magistrate. The language employed in the verification and the fact that the affidavit was attested before the Magistrate would go a long way to show that there was no defect therein whatsoever and for that reason the learned Additional Sessions Judge repelled the contention that the verification was not in consonance with the provisions of Section 297 of the Code of Criminal Procedure. Nothing at all has been brought on record that might persuade me to take a view different than the one taken by the learned Additional Sessions Judge on correctness of verification of formal affidavits Exs. PE and PF. 9. In so far as some discrepancies in the statements made by the police officials are concerned suffice it to say that when prosecution witnesses are examined after a long time from the date of recovery occurrence, some variation in their statements are bound to occur. No discrepancies that may be material and might go the root of the case have been pointed out to this Court. The mere fact that the police had laid a naka under the supervision of BSF personnel and the said BSF personnel had not signed the recovery papers cannot be a ground to negative the entire prosecution case. It is quite apparent from the records of the case that the place of recovery is some where near the border of Pakistan. The mere fact that the police had laid a naka under the supervision of BSF personnel and the said BSF personnel had not signed the recovery papers cannot be a ground to negative the entire prosecution case. It is quite apparent from the records of the case that the place of recovery is some where near the border of Pakistan. In these circumstances, BSF personnel must be present in connection with the general supervision and not in any other connection. The petitioner should only thank him that he has not been prosecuted under Section 307 of the Indian Penal Code. In any case, if he has not been prosecuted under the Indian Penal Code and under the Arms Act it cannot be a ground to reject the case of recovery of 50 kgs. of opium. Further, it is possible that his party men who managed to escape had fired and in these circumstances no arms might have been recovered from the petitioner. 10. If the sample of opium was sent for chemical examination on 27.12.1982 whereas sample was taken on 14.12.1982, it would not make any difference till such time some evidence is brought on record to show that during the time sample was lying in the malkhana, the same was tampered with. Nothing at all appears to be dependent upon the defence version. It may be recalled that DW1 only stated that the petitioner was falsely implicated at the instance of Sarpanch Charanjit Singh. This plea taken in defence could not be substantiated at all. Further, it is not probable that the Investigating Officer had planted 50 Kgs. of opium at the instance of some one only. The Investigating Officer could not have secured such huge quantity of opium so as to plant it upon the petitioner. In any case, it was not probable. 11. The facts of the case fully detailed above would demonstrate that there was no occasion for the police party to join any independent person. The occurrence is of night near Indo-Pak border. No witness could have been available at that hour of night and at such a place. 12. In so far as giving benefit of sections 360 and 361 of the Code of Criminal Procedure or Sections 4 and 6 of the Probation of Offenders Act is concerned, in considered view of this Court, the petitioner did not deserve the same. No witness could have been available at that hour of night and at such a place. 12. In so far as giving benefit of sections 360 and 361 of the Code of Criminal Procedure or Sections 4 and 6 of the Probation of Offenders Act is concerned, in considered view of this Court, the petitioner did not deserve the same. The recovery is of 50 Kgs. of opium and it certainly appears to be a case of smuggling of huge quantity of contraband from across the border. 13. Finding no merit in the revision petition, I dismiss the same. Revision dismissed.