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2003 DIGILAW 502 (PNJ)

Lal Singh v. State of Punjab

2003-04-06

NIRMAL SINGH

body2003
JUDGMENT Nirmal Singh, J. - The petitioner was prosecuted and convicted under Section 9 of the Opium Act (hereinafter called the Act) to undergo rigorous imprisonment for 1-1/2 years and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for six months vide order dated 19.9. 1988 by the Judicial Magistrate Ist Class, Fazilka. The petitioner filed an appeal before the Additional Sessions Judge, Ferozepur. The same was also dismissed vide order dated 2.8.1990. Aggrieved by the orders of the courts below, the present revision has been preferred. 2. The relevant facts for the disposal of this revision petition are that on 7.5.1984 SI Harbans Lal along with Gurpal Singh, SHO and other police officials in the area of Roop Nagar at a distance of half kilometer from Indo-Pak border was holding naka and at about 4.00 A.M. they heard sound of foot steps from the side of Pakistan. The petitioner along with one other person was seen coming from the side of Pakistan. SHO Gurpal Singh gave a signal with torch light to stop. SI Harbans Lal identified the petitioner in the torch light. On seeing the policy party, the petitioner threw the bundle which was being carried on his head and ran away from the spot. The other person Aad Lal was arrested by the SHO. SI Harbans Lal tried to chase the petitioner but he succeeded in running away. SI Harbans Lal along with other police officials who chased the petitioner came to the spot and searched the bundle which was thrown by the petitioner. From the bundle 20 Kgs opium wrapped in a glazed paper was recovered. 10 gms opium was separated as sample and the remaining opium was put into a separate tin. Sample as well as the tin were sealed with seal HL and the case property was taken into possession vide recovery memo Ex. PA. After completion of investigation, the petitioner was challaned. 3. To prove its case, the prosecution has examined SI Harbans Lal as PW-1, HC Kimti Lal as PW-2, C. Pal Singh as PW3, HC Nirmal Singh as PW4, HC Harkrishan Kumar as PW5. The prosecution also tendered in evidence report of the Chemical Examiner Ex. PD and closed the evidence. 4. After completion of investigation, the petitioner was challaned. 3. To prove its case, the prosecution has examined SI Harbans Lal as PW-1, HC Kimti Lal as PW-2, C. Pal Singh as PW3, HC Nirmal Singh as PW4, HC Harkrishan Kumar as PW5. The prosecution also tendered in evidence report of the Chemical Examiner Ex. PD and closed the evidence. 4. When the petitioner was examined under Section 313 Criminal Procedure Code to explain the incriminating circumstances appearing in the prosecution evidence, he denied simplicitor and pleaded false implication. The petitioner was called to lead evidence in defence but he did not examine any evidence. 5. After hearing learned counsel for the petitioner and the learned APP for the State, the learned Magistrate convicted and sentenced the petitioner and the appeal filed before the Additional Sessions Judge, Ferozepur was dismissed on 2.8.1990 aggrieved by which the present revision has been filed. 6. Learned counsel for the petitioner has raised the same contentions which had been raised before the courts below. The only submission made by the learned counsel for the petitioner is that identity of the petitioner is highly doubtful. He submitted that the petitioner was not apprehended at the spot but was apprehended after a lapse of two years. He contended that the petitioner belongs to village Pakki, Police Station, Hindu Mal Kot, District Ganganagar whereas the case has been registered at Police Station, Khuiyam Sarwar. So there is no question of identifying the petitioner by the witnesses of recovery. He further submitted that the petitioner has been falsely implicated in this case. 7. He further submitted that the case is based on the testimony of official witnesses whereas the case of the prosecution is that SI Gurpal Singh along with ASI Harbans Singh went to hold a Naka. He submitted that when the police party had gone to hold a Naka then it should have joined independent witness. 8. I have considered the submissions made by the learned counsel for the petitioner but find the same without any force. There is no law that the conviction of a person cannot be sustained on the evidence of official witnesses. He submitted that when the police party had gone to hold a Naka then it should have joined independent witness. 8. I have considered the submissions made by the learned counsel for the petitioner but find the same without any force. There is no law that the conviction of a person cannot be sustained on the evidence of official witnesses. When the case of the prosecution is based on the statements of official witnesses, it puts the court to its guard to scrutinize the evidence of SI Harbans Lal PW1 and HC Keemti Lal, PW2 is consistent on all the material points regarding date, time and the place from where the recovery had been effected from the petitioner. Learned counsel for the petitioner has failed to point out any discrepancy worth the name in the statements of the official witnesses. In the instant case, the police party in the area of village Roop Nagar held a Naka at mid night and at about 4 A.M. on 7.5.1984 when the petitioner along the another person was spotted coming from the side of Indo- Pak Border carrying bundle on his head and they were given a signal to stop with torch light but he threw the bundle and ran away. SI Harbans Lal and others tried to chase the petitioner but he escaped. The petitioner was known to SI Harbans Lal as earlier the petitioner was arrested by him in an excise case. So there cannot be any mistaken identity. The Investigator has no animus to falsely implicate the petitioner. If the Investigator had to falsely implicate the petitioner then he could very well implicate him by planting a small quantity of opium and would not plant such a heavy quantity of 20 kgs of opium. The contention raised by the learned counsel for the petitioner that no independent witness has been joined is also not sustainable. The recovery was effected at mid night. No person would be willing to join the police party in the odd hours. There is no evidence on record that at the time when the recovery was effected some independent witnesses were available and they had not been joined. So on this ground, the case of the prosecution cannot be held to be suspicious. 9. No other point has been urged or pressed by the learned counsel for the petitioner. There is no evidence on record that at the time when the recovery was effected some independent witnesses were available and they had not been joined. So on this ground, the case of the prosecution cannot be held to be suspicious. 9. No other point has been urged or pressed by the learned counsel for the petitioner. So there is no illegality or irregularity in the order convicting the petitioner under Section 9 of the Opium Act by the courts below. 10. On the quantum of sentence, under the Opium Act, maximum sentence prescribed was three years which a Magistrate can impose. The recovery was effected from the petitioner on 7.5.1984. Since then the petitioner is facing the rigors of the trial. So there is a scope for reduction of sentence. Accordingly, the sentence of the appellant is reduced from 1-1/2 years to 9 months. However, the sentence of fine is maintained. With this modification, the revision is dismissed. Revision dismissed.