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2003 DIGILAW 353 (PNJ)

Chamkaur Singh v. State Of Punjab And Haryana

2003-02-26

R.L.ANAND

body2003
Judgment R. L. Anand, J. 1. This is a criminal revision filed by Shri Chamkaur Singh and has been directed against the judgment dated 19/4/1988 passed by the Court of Additional Sessions Judge, Faridkot, who maintained the conviction of the petitioner under Sec.9 of the Opium Act and dismissed the appeal. 2. The brief facts of the case are that Shri Chamkaur Singh was prosecuted under Sec.9 of the Opium Act on the allegations that on 14/5/1985 he was allegedly found in possession of opium weighing one kilogram without any licence or permit and thereby committed an offence punishable under Sec.9 of the Opium Act. The case of the prosecution further is that on 14/5/1985 the police party headed by ASI Sardul Singh was proceeding towards Village Ganji Gulab in connection with patrol duty and when it reached in the area of village Smadhbhai, the petitioner was noticed coming from the opposite direction and on seeing the police party he tried to give a slip. Upon this, suspicion having aroused, the petitioner was apprehended by the A. S. I. and his personal search was carried out as per rules. From the possession of the petitioner, opium weighing one kilogram wrapped in a glazed paper, was found. The petitioner was carrying this opium in a Jhola Ex. P.1. The Thanedar separated 10 grams of opium by way of sample and made a sealed parcel thereof. The remaining bulk of the opium was separately sealed by the Thanedar with seal bring impression SS. The opium was taken into possession vide memo Ex. PE attested by the witnesses. The petitioner could not produce any licence or permit for the possession of the opium. Rukka Ex. PH was sent to the Police Station Baghapurana for the registration of the case on the basis of which formal FIR Ex. PH/i was registered. The Investigating Officer also prepared rough site plan of the place of recovery and on return to the policestation he deposited the sealed parcel of the opium with seals intact with the MHC. The sample of opium was sent to the office of Chemical Examiner who vide report Ex. PD declared the substance as opium. On the completion of the investigation of the case, the accused was challaned under Sec.9 of the Opium Act. 3. The sample of opium was sent to the office of Chemical Examiner who vide report Ex. PD declared the substance as opium. On the completion of the investigation of the case, the accused was challaned under Sec.9 of the Opium Act. 3. The copies of the documents as relied upon by the prosecution were supplied to the accused and he was charged under Sec.9 of the Opium Act to which he pleaded not guilty and claimed a trial. 4. In order to prove the charge the prosecution examined ASI Sardul Singh the Incharge of the policeparty and Shri Manjit Singh constable who as the member of the policeparty. Both the witnesses deposed that the accused was apprehended on the said date and at the time of his apprehension he was carrying a Jhola. Search of the Jhola was conducted as a result of which opium was recovered and on weighment, it was found to be one kilogram. Resultantly the rukka was sent to the police station for the registration of the case. The learned Magistrate for the reasons recorded in its judgment convicted the appellant under Sec.9 of the Opium Act and sentenced him to undergo R. I. for a period of one year and to pay a fine of Rs.200.00 . In default of payment of fine the petitioner was directed to undergo R. I. for a period of six months. 5. Aggrieved by his conviction and sentence the petitioner filed an appeal before the Court of Additional Sessions Judge who vide impugned judgment dated 19/4/1988, dismissed the appeal. 6. Still, not satisfied with the decision of the first appellate court, the present revision. 7. I have heard Shri V. K. Kataria, learned counsel appearing on behalf of the petitioner and Shri G. S. Gill, Sr. DAG, Punjab, appearing on behalf of the respondent and with their assistance have gone through the record of the case. 8. The first contention which was raised by the counsel for the petitioner is that Shri Sardul Singh incharge of the policeparty did not try to associate any independent witness either from the place of recovery or from the nearby place so as to infuse confidence in the mind of the Court about the genuineness of the recovery. The submission of the counsel for the petitioner is not acceptable to the Court. The submission of the counsel for the petitioner is not acceptable to the Court. In this case, the prosecution examined two witnesses in order to prove the factum of recovery of opium from the possession of the petitioner. Firstly, Shri Sardul Singh ASI has stated that he was incharge of the Policeparty. He apprehended the petitioner. The recovery was effected as per chance. Therefore, it was not obligatory on the part of Sardul Singh to take the assistance of the independent witness specially when the other members of the police party were present. Manjit Singh PW has also deposed in favour of the prosecution. The law of the land is that conviction can be based even on the statement of the police officials provided their statements should inspire confidence. The principle of honesty equally applies to the police officials and it will not be considered as a judicious approach to distrust the police officials by jumping to a conclusion without any basis. If any law is required on this aspect we can cite a case reported as Ahri Raja Bhima V/s. State of Swarashtra1. Present is a case of recovery of one kilogram of opium. It is not believable that Shri Sardul Singh ASI will plant heavy quantity of opium from his personal resources. He has not axe to grind against the petitioner. 9. The learned counsel for the petitioner has also relied upon Sadhu Singh V/s. State of Punjab2. This cited judgment is not helpful to the petitioner and in this judgment it was observed by the Honble High Court that in a case of such type of recovery, it is not necessary that public witness must be joined but attempt should be made to join the public witness. In the cited case the recovery was effected from such a place that it was very easy for the Investigating Officer to make an earnest attempt for the association of an independent witness but in the present case it has not been shown by the counsel for the petitioner that near the place of recovery there was any government building or Kotha from where the Investigating Officer Shri Sardul Singh could be in a position to associate any independent witness. 10. It was also pointed out by the counsel for the petitioner that there is a doubt with regard to the date of recovery. 10. It was also pointed out by the counsel for the petitioner that there is a doubt with regard to the date of recovery. One witness is saying that the recovery was effected on 14/5/1985 and the other was saying that the recovery was effected in the month of September, 1985. In my opinion, the petitioner cannot take the benefit of this discrepancy. This aspect of the case has been well considered by the trial Court in pam No.8 of the judgment when it remarked that it appears to be a slip of pen while noting down the date of recovery. We also cannot lose sight of the fact that on 14/5/1985 the FIR was registered. Many documents were prepared on that day. The case property was deposited in the Policestation with the MHC and there must be entry in the mjnamcha which cannot be fabricated. Resultantly, the contention raised by the learned counsel for the petitioner also stands rejected. 11. It was then submitted by the counsel for the petitioner that the petitioner may be visited with leniency in the matter of sentence as the recovery has been effected in the year 1985 and since then the petitioner is suffering the vagaries of the criminal proceedings. In these circumstances, I am of the opinion that the ends of the justice will suffice if the substantive sentence of the petitioner is reduced to six months. Ordered accordingly. Sentence of fine will remain the same. With this modification in the matter of sentence, the revision stands disposed of. Revision disposed of accordingly.