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2000 DIGILAW 835 (PNJ)

Shahzada Singh v. State of Punjab

2000-08-01

V.S.AGGARWAL

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JUDGMENT V.S. Aggarwal, J. - The present revision petition has been preferred by Shahzada Singh, hereinafter described as "the petitioner" directed against the judgment and order of sentence passed by the learned Chief Judicial Magistrate, Jalandhar, dated 15.9.1986 and of the learned Additional Sessions Judge, Jalandhar, dated 4.4.1987. The learned trial Court held the petitioner guilty of the offence punishable under Section 9 of the Opium Act and sentenced him to undergo rigorous imprisonment for 1-1/2 years and to pay a fine of Rs. 1500/-. In default of payment of fine, he was to undergo rigorous imprisonment for three months. The appeal preferred by the petitioner was dismissed. 2. The relevant facts are that on 5.8.1976 at about 10 a.m. Assistant Sub Inspector Darshan Singh accompanied by Assistant Sub Inspector Harbans Singh and some other police officials were present outside IInd Class Railway waiting hall at Railway Station, Jalandhar. The petitioner came out of the railway station and was stopped on suspicion. He was carrying a bag in his right hand. It was searched. It contained opium wrapped in the fold of pant and chadder. The contents were found to be 4-1/2 kgs. 50 grams was taken as a representative sample. The remaining opium and the representative sample were converted into two separate parcels and sealed with the seal of H.S. Saini. They were taken into possession vide recovery memo. The articles later on were deposited in the Malkhana. The representative sample was sent for the report of the Chemical Examiner. It was reported that it was opium. This led to the filing of the challan against the petitioner. 3. During the course of trial, the prosecution had examined two witnesses, namely, ASI Darshan Singh and ASI Harbans Singh. Formal witnesses submitted their affidavits. The petitioner in his statement under Section 313 of the Code of Criminal Procedure denied the assertion of the prosecution about the recovery of opium from his person and stated that he has been falsely implicated. In defence, he examined one Hazara Singh as DW1. 4. The learned trial Court on appraisal of evidence concluded that the prosecution has successfully proved its case beyond all reasonable doubt. The defence version that the petitioner was falsely implicated had been rejected. With these findings, the abovesaid judgment and order of sentence followed. The reasoning of the trial Court found favour with the learned Additional Sessions Judge, Jalandhar. 5. The learned trial Court on appraisal of evidence concluded that the prosecution has successfully proved its case beyond all reasonable doubt. The defence version that the petitioner was falsely implicated had been rejected. With these findings, the abovesaid judgment and order of sentence followed. The reasoning of the trial Court found favour with the learned Additional Sessions Judge, Jalandhar. 5. When the revision petition was listed for hearing, there was no appearance on behalf of the petitioner. In these circumstances, this Court did not have the advantage of hearing the learned Counsel for the petitioner. 6. One of the pleas offered by the petitioner has been that, as per prosecution case, the opium was recovered while it was wrapped in the pant and the chadder. During the course of trial, it was asserted that the pant and the chadder have not been produced and, therefore, this makes the prosecution case suspect. 7. On careful consideration of the plea, it is obvious that it is totally devoid of any merit. It is the duty of the prosecution to prove and produce all the evidence relevant to the alleged crime. It is not the duty to prove and produce all the unnecessary material which reflects very little or does not reflect at all on the prosecution case. The prosecution had come to the court that the petitioner was in possession of the opium. The pant and the chadder were in no way connected with the crime. Therefore, they were rightly not taken into possession. In any case, all these facts have to be considered on the touchstone as to if any prejudice had been caused to the petitioner or not. The genesis of the case was that opium was recovered. Non-production of pant and chadder in no way, therefore, would be material and no prejudice is caused to the petitioner. The contention that has been so raised must fail. 8. It is true that, as per prosecution case, Gurcharan Singh, a public witness, has been joined in the raiding party. During the course of trial, he was not examined. He was given up having been won over by the petitioner. Can this fact be taken note of to hold that the testimony of the official witnesses are also to be discarded ? The answer would be that it depends upon the facts and circumstances of each case. During the course of trial, he was not examined. He was given up having been won over by the petitioner. Can this fact be taken note of to hold that the testimony of the official witnesses are also to be discarded ? The answer would be that it depends upon the facts and circumstances of each case. Herein, when the prosecution asserted that the public witness has been won over by the petitioner, he was rightly given up. Necessarily, the testimonies of the official witnesses have to be examined and considered with great care and caution. Both ASI Darshan Singh PW1 and ASI Harbans Singh PW2 unequivocally stated about the recovery of opium from the person of the petitioner. They were cross-examined. Thee was little to discard their testimonies or draw adverse inference. The petitioner had been apprehended on suspicion and, therefore, insisting for many witnesses to have been joined will not be correct. 9. During the course of evidence, it transpired that though the case of the prosecution was that sample and the rest of the opium were sealed with the seal of H.S. Saini, but when ASI Harbans Singh appeared as PW2, the statement made was that the same were sealed with the seal of HSN. It has to be remembered that when the witness stepped into the witness-box, the incident was almost 10 years old. The said witness had already retired from the police service. Therefore, it must follow that there would be some loss of memory. It cannot be accepted (expected ?) that a witness after lapse of such a long time will reproduce all the facts in a mathematical way. Small variations would always occur in the testimony of the witnesses. 10. In these circumstances, this Court finds no ground to differ from the view point of the trial Court and the first appellate Court at Jalandhar. 11. However, a fact which cannot lost sight of is that the incident took place about 24 years ago. The petitioner has already undergone more than two months of sentence. Keeping in view such a long time that had elapsed, it would be unnecessary to insist that the petitioner should undergo rest of the sentence. That is for the added reason that at the time when the incident took place, the petitioner was sated to be about 17 years of age. Keeping in view such a long time that had elapsed, it would be unnecessary to insist that the petitioner should undergo rest of the sentence. That is for the added reason that at the time when the incident took place, the petitioner was sated to be about 17 years of age. The interest of justice, in these circumstances, would be fully met if the sentence is reduced to the one already undergone. 12. For these reasons, the revision petition must fail and is accordingly dismissed but for the interference on the quantum of sentence. Revision dismissed.