Resham Singh, Krishan Lal v. State Of U. T. Chandigarh
2003-07-04
JASBIR SINGH
body2003
DigiLaw.ai
Judgment Jasbir Singh, J. 1. This revision petition has been filed against conviction and sentence awarded to the petitioner by the trial Court vide its judgment and order dated July 15, 1988. Appeal filed by the petitioner was dismissed by the appellate Court below vide its judgment dated July 14, 1990. 2. In brief, prosecution story is that on June 28, 1985 at about 9 A. M, Inspector Sita Ram along with police officials was present near the round about on Sectors 40-41 in connection with patrol duty. One independent person, namely, Dharam Singh was also present at the spot. At that time, petitioner-accused was. seen coming towards Bus Stand from Sector 38d. He was carrying one iron box on his right shoulder. On seeing the police party, he tried to go back. On suspicion, he was apprehended and when search was conducted, 50 Kilograms of opium wrapped iii a glazed paper was recovered from the iron box.500 grams of opium was separated (as a sample ). Sample and the remaining quantity of opium were taken into possession and sealed separately in different parcels. Petitioner-accused was arrested and after completion of necessary formalities, final report was submitted against him. Trial Magistrate found that a prima fade case under Sec.9 of the Opium Act, 1878 , was made out against the petitioner and he was, charged accordingly. Petitioner pleaded not guilty and claimed trial. 3. Prosecution then examined Dharam Singh as PW1, Sub Inspector Tirath Singh as PW2 and Inspector Sua Ram as PW3. Affidavits of formal witnesses and report of the Chemical Examiner were tendered. into evidence. Petitioner-accused was then examined under Sec.313 of the Code of Criminal Procedure. He denied the allegations against him and pleaded innocence. In defence, he stated that he had falsely been implicated in this case by the police officials. He further stated that he was a taxi driver and in the past, he had been obliging the police officials by giving his taxi free of costs but a few days earlier to the occurrence, he ,refused to oblige them and because of that, he had been booked in this false case. He produced one Mohinder Singh as DWI.
He further stated that he was a taxi driver and in the past, he had been obliging the police officials by giving his taxi free of costs but a few days earlier to the occurrence, he ,refused to oblige them and because of that, he had been booked in this false case. He produced one Mohinder Singh as DWI. Trial Court, after appreciation of evidence on record, as led by both the parties, held the petitioner-accused guilty and convicted him under Sec.9 of the Opium Act, 1878 , and sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs.5,000.00 . In default of payment of fine, he was to undergo further regorous imprisonment for six months. Petitioner went in appeal, which was dismissed on July 14, 1990. Hence this revision petition. 4. Shri R. K. Battas, learned counsel for the petitioner, vehemently contended that the prosecution story is wholly unreliable. The only independent witness (PW1) produced by it has failed to support its case. Rather he was declared hostile when he appeared in the witness box. Counsel further argued that no specimen of seal, as alleged to have been put on the sample, was separately prepared and handed over to any independent witness. He further argued that the conviction has been based solely on the testimony of official witnesses and by referring to some discrepancies in their statements, counsel contends that the statements of those official witnesses are not worthy of any reliance. It was further argued that no recovery memo was prepared regarding handing over of key of the lock, which, was allegedly put on the iron box, out of which opium was allegedly recovered. To support his contention, Shri Battas has relied upon judgments in Kasturi Lal V/s. The State of Punjab Dharam Singh V/s. State of Punjab and State of Punjab V/s. Raj Singh. 5. With the assistance of counsel for the petitioner, records were perused and after going through the same, this Court feels that there is no substance so far as arguments raised by counsel for the petitioner are concerned. It is apparent from the records that heavy quantity of opium weighing 50 kilograms was recovered from the petitioner. Quantity of contraband recovered is such that it cannot be reasonably presumed that such a huge quantity can falsely be implanted upon the petitioner.
It is apparent from the records that heavy quantity of opium weighing 50 kilograms was recovered from the petitioner. Quantity of contraband recovered is such that it cannot be reasonably presumed that such a huge quantity can falsely be implanted upon the petitioner. Petitioner failed to prove on record anything to show that the police officials were inimical towards him because of any reason. His defence that he used to ply a taxi and had refused to oblige the police officials by giving them his taxi free of costs has not been established on record. Nothing has been brought on record to show as to what was the number of taxi, which he was allegedly plying when demand was made by the police officials and on which date earlier to the alleged occurrence, how many times, he had obliged the police officials by giving them his taxi free of costs. Contention of learned counsel for the appellant that since the only independent witness Dharam Singh had failed to support prosecution version, no reliance could be placed upon the testimony of officials witnesses is not justified. In such like situation, when there exists no independent corroboration to the story of prosecution, Court is required to look into statements of official witnesses with more care and caution. If the statements made by the official witnesses do not inspire confidence, only then their testimony can be discarded and benefit of doubt can be extended to the accused. However, in this case, no such major discrepancy or contradiction has been indicated in the statements of official witnesses. It has only been argued, that there existed contradiction so far as mode and method of weighing the contraband is concerned and that the witnesses are not one regarding alleged running away of the petitioner from the spot. A perusal of statements made by the official witnesses indicates that the contradictions! discrepancies in their statements are very minor and due to those discrepancies, their testimony cannot be discarded. In this case no explanation has been given by the petitioner as to why he had failed to raise his voice against his false implication. He never made any application or representation to the higher officials. Even Mohinder Singh (DW 1) had not made such like attempt.
In this case no explanation has been given by the petitioner as to why he had failed to raise his voice against his false implication. He never made any application or representation to the higher officials. Even Mohinder Singh (DW 1) had not made such like attempt. Signatures of Dharam Singh (PW 1) exist on all the relevant papers and now that witness has tried to wriggle out of the same by giving an explanation, which was found to be correct and justified by both the Courts below. 6. Next contention of Shri Battas that since recovery memo regarding key of the lock, which was allegedly put on the iron box was not prepared, as such prosecution story could not be relied upon, is not Justified. This argument was noticed by, the Courts below and was rightly rejected. It is not such a material flaw in the prosecution case, on the basis of which benefit of doubt can be given to an accused from whom 50 kilograms of opium was recovered. No benefit of the ratio of judgments In Kasturi Lalts case (supra ). Dharam Singhs case (supra) and Raj Singhs case (supra) can be given to the petitioner In this case. Facts of those cases are not similar to the one before this Court. In Raj Singhts case (supra), no independent witness was joined by the police officials at all and furthermore in that case, prosecution had failed to establish that the sample of opium remained Intact till it was tested by the Chemical Examiner. In Kasturi Lals case (supra), again no Independent witness was joined by the police officials and even one of the official witnesses was declared hostile. Under those circumstances, benefit of doubt was given to the accused in that case. In Dharam Singhts case (supra), this Court came to a conclusion that possibility of the recovery being planted could not be ruled out, as there was enmity between the accused In that case and Station House Officer of the area, in which first information report was recorded. The facts of the present case are different. Here testimony of both the official witnesses is trustworthy and the same cannot be discarded simply on the basis of minor discrepancies here and there.
The facts of the present case are different. Here testimony of both the official witnesses is trustworthy and the same cannot be discarded simply on the basis of minor discrepancies here and there. Recovery is very heavy and false implication of the petitioner in this case simply due to refusal by him to give taxi to the police officials free of costs, Is not established. 7. Keeping In view facts and circumstances of the case, this Court feels that there Is no error, on the basis of which benefit can be given to the petitioner. Concurrent findings arrived at by both the Courts below cannot be interfered with. Conviction of the petitioner-accused under Sec.9 of the Opium Act.1878. is upheld. However, keeping In view the fact that petitioner is facing trial since the year 1985 and his appeal was pending in this Court since 1999 his sentence is reduced from two years to one year. However, sentence regarding fine is maintainable. With aforesaid modification, this revision is dismissed. Revision dismissed exception with modification in sentence.