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2000 DIGILAW 618 (PNJ)

Raj Kumar v. State of Haryana

2000-05-31

V.S.AGGARWAL

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ORDER V.S. Aggarwal, J. - The present revision petition has been filed by petitioners Raj Kumar and Bhagwan Dass directed against the judgment and the order of sentence passed by the learned Judicial Magistrate Ist Class, Rohtak dated 23.5.1987 and of the learned Sessions Judge, Rohtak dated 19.5.1988. The learned Judicial Magistrate held the petitioners guilty of the offence punishable under Section 61(1)(a) of the Punjab Excise Act and sentenced each one of them to rigorous imprisonment for three years and to pay a fine of Rs. 2000/-. In default of payment of fine, they were to undergo rigorous imprisonment for six months. The appeal preferred as mentioned above was dismissed. 2. The relevant facts are that according to the prosecution case on the intervening night between 22/23.9.1982 a police party comprising of nine police personnels was patrolling on Rohtak-Bhiwani road. It included Sub- Inspector Ram Kumar of Police Station Kalanaur, Head Constable Raj Kumar and ASI Basant Singh. At about 3.30 A.M. they were present on the road called Kherari turning. One Ambassador car came from the side of Bhiwani. Petitioner Raj Kumar was driving the vehicle. On one side a bag was lying containing 37 packets of charas weighing 34-1/2 Kilograms. Petitioner Bhagwan Dass was sitting on the back side along with Datt Bahadur. 41 packets of charas were lying on the back side at the feet of Bhagwan Dass and Datt Bahadur weighing 38-1/2 kilograms. A sample of 10 grams was separated from each of the 78 packets. They were sealed separately and rest of the Charas was also converted into different packets and sealed. Ruqa was sent to the police station for registration of the formal first information report. One Kishan Lal Goswami a resident of nearby village Sampel was joined in the raiding party. 3. The charge against the petitioners was that in the early hours on 22 and 23.9.1982, they were found in possession of 73 kilograms of charas without any permit or licence. Datt Bahadur had been declared to be a proclaimed offender. 4. On appraisal of evidence, the learned Judicial Magistrate as mentioned above believed the testimonies of the official witnesses and concluded that petitioners were found to be in illegal possession of charas without any permit or licence. With these findings, the above said judgment and the order of sentence was passed. 4. On appraisal of evidence, the learned Judicial Magistrate as mentioned above believed the testimonies of the official witnesses and concluded that petitioners were found to be in illegal possession of charas without any permit or licence. With these findings, the above said judgment and the order of sentence was passed. The said findings were endorsed by the learned Sessions Judge. 5. Kishan Lal Goswami is the solitary public witness who has been joined by the police party. During the course of his testimony, he has taken a somersault and refused to identify the petitioners as the persons present in the said vehicle. He stated that he has only seen Datt Bahadur at that time. It has rightly been observed that he was deliberately trying to suppress the truth. If there were other persons, the said public witness could name them. He does do so. In these circumstances, obviously it cannot be termed in the facts of the present case that no public witness had been joined. But on the contrary, it is clear that public witness was not supporting the prosecution case for ulterior motives. 6. When public witness does not support the prosecution case, necessarily one has to dwell to the testimonies of the official witnesses. Only as a matter of prudence the Courts insist on joining of the public witnesses. If official witnesses are truthful and there is no other reason to disbelieve them, an order of conviction can be passed on their testimonies. In the present case Head Constable Raj Kumar PW-2, ASI Basant Singh PW-3 and Officer Incharge of the Police Station Ram Kumar PW-1 supported the prosecution version pertaining to the recovery of Charas. There is no ground to discredit their testimonies. Small variations here and there do not hit the substratum of the testimonies of the official witnesses and hit the truthfulness of their statements. 7. In fact the recovery as such has not seriously been disputed. The petitioners when examined under Section 313, Code of Criminal Procedure had admitted that the car had been stopped. They only stated that Charas was not in their possession. The defence put forward was that Shiv Kumar had told them that son has been born in the house of his maternal uncle. Bhagwan Dass works in the Coal Depot. The maternal uncle would require the car. Both the petitioners started from Bhiwani to Rohtak. They only stated that Charas was not in their possession. The defence put forward was that Shiv Kumar had told them that son has been born in the house of his maternal uncle. Bhagwan Dass works in the Coal Depot. The maternal uncle would require the car. Both the petitioners started from Bhiwani to Rohtak. On the turning of village Kharak, Datt Bahadur signalled them and they stopped the car. At Kherari village the police stopped them. The charas was recovered but it did not belong to the petitioners. Shiv Kumar appeared as DW-1 to support their version. He stated that it was 8.00 A.M. in the morning that he deputed both the petitioners to go to Rohtak. In the present case it has been noticed that recovery had been effected much earlier. Even first information report was recorded at 6.50 A.M. These factors reveal, therefore, that the testimonies of Shiv Kumar and the defence version put forward cannot be believed. 8. Before any such conviction order can be upheld, it has to be established that petitioners were in conscious possession of Charas. In the case of Jaswant Singh and another v. The State of Haryana, 1976 Punjab Law Reporter 288 the opium was recovered from the truck. Even if the factum of the presumption and shifting of the onus is ignored, still the Court held :- "This clear-cut enunciation of the meaning to be attached to the provisions of the section is an insurmountable hurdle in the way of the petitioners. The opium was recovered from the truck and all the petitioners were travelling in the truck. A direct connection between them and the opium has thus been established. And if that be so, by virtue of the presumption arising under Section 10 the onus shifts to them to show the existence of circumstances that they had not committed the offence with which they were charged or, in other words, that they had no knowledge of the six bags above mentioned containing opium. No such circumstance is available in the present case. In fact, all the petitioners have denied the recovery itself which, of course, has been established beyond doubt." 9. In the case of Jawar Arjan v. State of Gujarat, AIR 1979 Supreme Court 1500 the facts were that the appellant was a rickshaw driver. He had carried the other accused in the rickshaw. In fact, all the petitioners have denied the recovery itself which, of course, has been established beyond doubt." 9. In the case of Jawar Arjan v. State of Gujarat, AIR 1979 Supreme Court 1500 the facts were that the appellant was a rickshaw driver. He had carried the other accused in the rickshaw. The illicit liquor was found in the balloons from the rickshaw. It was held that rickshaw driver cannot be termed to be in conscious possession. He was acquitted. It was held :- "This information, however, being inadmissible, cannot be used against the appellant because there is no evidence to show that the appellant was asked to put these articles in the dicky of the Rickshaw. Nor there is anything to show that the bag containing the balloons was so clearly visible as to lead to the inference therefrom that the bag contained illicit liquor. It appears from the prosecution case itself that the articles were kept in a bag which has closed and they were put into the dicky of the Rickshaw. The appellant was merely a Rickshaw driver. He cannot be imputed with the knowledge of the possession of the articles merely because the passenger put those articles in the dicky of that rickshaw. For these reasons, therefore, we are fully satisfied that there is no legal evidence to connect the accused with the crime." As would be seen hereinafter in the facts of the present case it cannot be stated that the petitioners were not in possession of the Charas. 10. In the present case in hand it is not that petitioner Raj Kumar was simply the driver of the vehicle. A substantial portion of Charas was lying near him, while in the case of Bhagwan Dass the other part namely rest of the Charas was lying near the feet. If they were carrying a third person as is being alleged, there was no occasion as to why they would carry Charas separately on the front and the rear side in the vehicle. The totality of facts, therefore, clearly shows that they were in possession of Charas and there is no ground thus to interfere. The revision petition must fail and is dismissed 11. The totality of facts, therefore, clearly shows that they were in possession of Charas and there is no ground thus to interfere. The revision petition must fail and is dismissed 11. As regards the quantum of sentence, though twelve years have elapsed since the judgment was delivered by the learned Sessions Judge but keeping in the view the huge quantity, the interest of justice requires that the sentence should be reduced for each of the petitioners to one year rigorous imprisonment with no interference with the quantum of fine. Revision dismissed.