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2004 DIGILAW 664 (PNJ)

State of Punjab v. Darshan Kaur

2004-07-06

V.M.JAIN

body2004
JUDGMENT V.M. Jain, J. - This appeal against acquittal has been filed by the State of Punjab, challenging the judgment dated 22.7.1988 passed by the Sessions Judge, Amritsar, vide which the appeal filed by the accused Darshan Kaur was accepted, the judgment and order dated 21.7.1987 passed by JMIC, Amritsar was set aside and accused Darshan Kaur was acquitted of the charge under Section 9 of the Opium Act, for which offence, she was convicted by the learned Magistrate and was sentenced to undergo RI for 2-1/2 years and to pay fine of Rs. 1,000/- in default of payment of fine to undergo further RI for two months. 2. As per the case of the prosecution, on 14.8.1981, Inspector Harjit Singh received a secret information that accused Gurdip Singh, Darshan Kaur, Bhupinder Singh and Balwinder Singh were dealing in the sale of opium and large quantity of opium could be recovered from their possession, if the raid was conducted. Thereupon, Inspector Harjit Singh accompanied by other police officials left for village Khaperkheri and on the way associated Darshan Singh, Gurdial Singh from Putligarh Chowk, while chowkidar Rattan Singh was associated in the raiding party on reaching village Khaperkheri. The police party thereupon raided the house of the accused, where accused Darshan Kaur was found present while the other accused were not found present. Thereupon, after getting the key from accused Darshan Kaur, Inspector Harjit Singh opened the lock of a room of the house of the accused where, from the wheat bags stored therein, he found three tins containing 16-1/2 kg, 15-1/2 kg and 16 kg of opium, total 48 kg of opium. He took out 50 gms of opium from each of the three tins as samples and took the same into possession vide recovery memo Exhibit PB after the samples and the bulk were separately sealed. The said recovery memo was got attested from three independent witnesses from the public. Accused Darshan Kaur was arrested from the spot while remaining three accused namely, Gurdip Singh, Bhupinder Singh and Balwinder Singh were arrested later on. The three samples were sent to the Chemical Examiner, who vide his report Exhibit P.1 reported the same to be of the opium. All the accused were charged under Section 9 of the Opium Act, to which charge they pleaded not guilty. The three samples were sent to the Chemical Examiner, who vide his report Exhibit P.1 reported the same to be of the opium. All the accused were charged under Section 9 of the Opium Act, to which charge they pleaded not guilty. Thereupon, the prosecution produced in its evidence PW-1 Ajmer Singh and PW-2 DSP Harjit Singh. Besides that the report of the Chemical Examiner was tendered in evidence besides tendering the two affidavits. Two witnesses, namely, Grudial Singh and Darshan Singh were given up as won over and the prosecution evidence was closed. The accused in their statements under Section 313 Criminal Procedure Code denied the prosecution allegations against them and stated that they had been falsely implicated in this case. In their defence, they examined DW-1 Santokh Singh and DW-2 Jagtar Singh. 3. After hearing both sides and perusing the record, the learned Judicial Magistrate vide judgment and order dated 21.7.1987 convicted accused Darshan Kaur under Section 9 of the Opium Act and acquitted the remaining three accused named above and Darshan Kaur was sentenced to undergo RI for 2-1/2 years and to pay fine of Rs. 1,000/-. Aggrieved against the same, Darshan Kaur accused filed appeal in the Sessions Court. The learned Sessions Judge, Amritsar, after hearing both sides and perusing the record, accepted the appeal filed by Darshan Kaur and acquitted her of the charge framed against her. Aggrieved against the same, the State of Punjab filed the present appeal against acquittal in this Court. 4. Today at the time of arguments, no one came present on behalf of the respondent accused Darshan Kaur. 5. I have heard the learned counsel for the Appellate State and have gone through the record carefully. 6. The learned counsel appearing for the appellant State has submitted before me that considering the heavy quantity of opium recovered from the house of the accused-respondent, the learned Sessions Judge had erred in law in acquitting the accused respondent of the charge under Section 9 of the Opium Act. However, I find no force in this submission of the learned counsel for the appellant State. Merely because the recovery was heavy, in my opinion, would be no ground to uphold the conviction of an accused if otherwise, the prosecution has failed to prove its case against the accused. However, I find no force in this submission of the learned counsel for the appellant State. Merely because the recovery was heavy, in my opinion, would be no ground to uphold the conviction of an accused if otherwise, the prosecution has failed to prove its case against the accused. In the present case in order to prove the recovery of opium from the possession of the accused respondent Darshan Kaur, the prosecution had examined only two official witnesses, namely, PW-1 ASI Ajmer Singh and PW-2 DSP Harjit Singh. There were three independent witnesses joined in the raiding party at the time of the alleged recovery. Two of the said witnesses, namely, Gurdial Singh and Darshan Singh were given up by the Additional Public Prosecutor as having been won over by the accused. However, nothing has come on the record to show as to why the third independent witness from the village, namely, Chowkidar Rattan Singh was not examined by the prosecution. In my opinion, Rattan Singh Chowkidar would have been the best witness to depose as to what had transpired at the spot at the time of the alleged recovery. As referred to above, Rattan Singh Chowkidar was not examined nor he was specifically given up as won over. The non-examination of Rattan Singh Chowkidar as a prosecution witness, in my opinion, would go against the prosecution, especially when the only evidence led by the prosecution is the evidence of two official witnesses. 7. Furthermore, the learned Sessions Judge while acquitting accused respondent Darshan Kaur had found that she could not be said to be in conscious possession of the opium at the time of the alleged recovery. It is the case of the prosecution itself that the opium was recovered from a room of the house in which accused respondent Darshan Kaur was one of the occupants along with other male family members. At the time of the alleged recovery, only accused respondent Darshan Kaur was found present in the house. Since the room in question was locked, she was asked to produce its key and she had produced the key. In my opinion, merely by producing the key of the room from where the opium was allegedly recovered, it could not be said that the accused respondent Darshan Kaur was in conscious possession of the opium. Since the room in question was locked, she was asked to produce its key and she had produced the key. In my opinion, merely by producing the key of the room from where the opium was allegedly recovered, it could not be said that the accused respondent Darshan Kaur was in conscious possession of the opium. In my opinion, the learned Sessions Judge had rightly found that accused respondent Darshan Kaur could not be fastened with the liability of being in conscious possession of the opium, merely because, she had produced the key of the room, which otherwise was in joint possession of all other family members, including the male members of the family. In my opinion, from the testimony of PW-1 ASI Ajmer Singh and PW-2 Harjit Singh DSP, it could not be said that the accused respondent was in conscious possession of the opium. I am further of the opinion that the learned Sessions Judge had rightly ordered the acquittal of the accused respondent Darshan Kaur and no fault could be found with the same. In fact, the learned Sessions Judge had taken a possible view on the basis of the evidence led by the prosecution, while ordering her acquittal and no case for interfering with the acquittal of the accused respondent is made out on the facts and circumstances of the present case. In view of the above, finding no merit in this appeal, the same is hereby dismissed. Appeal dismissed.