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2004 DIGILAW 693 (PNJ)

State Of Punjab v. Shiv Kumar

2004-07-13

VIRENDER SINGH

body2004
Judgment Virender Singh, J. 1. In the index inadvertently, it is mentioned that the present appeal is filed by the State of Haryana. In fact, the State of Punjab is the appellant in this case. 2. Shiv Kumar son of Amrit Lal, resident of Kucha Jamit Rai Chowk Baba Sahib, Amritsar, has earned acquittal vide impugned judgment of learned Additional Chief Judicial Magistrate, Amritsar, dated 19.7.1988. He was charged under Section 9/1/78 of the Opium Act for allegedly keeping 4 kgs. of opium in his possession on 15.9.1982. 3. In brief, the case of the prosecution is that ASI Harjinder Pal Singh PW-1 along with other police officials was going to Gate Hakiman on routine patrolling. When the police party reached the said gate, the present respondent was seen coming from the side of the said gate. After seeing the policy party, he made an attempt to slip away. He was detained on suspicion and then from his personal search, contraband duly wrapped in a glazed paper was recovered from the Jhola, which he was having. It contained 4 kgs of opium. Five grams of opium was taken out as sample and put it in a tin box and parcel was prepared separately. The remainder weighed 3 kgs. 995 grams and was also put in a separate tin box and made into a separate parcel. Both the parcels were sealed with the seal impression HS (Harjinderpal Singh) and the seal after use was handed over to constable Harjinderpal Singh. The case property was taken into possession vide a recovery memo. Personal search of the respondent was also conducted. On the basis of the rukka, a formal FIR was recorded. 4. The prosecution in order to sustainatiate his charge has examined PW-1 Harjinder Pal Singh and PW-2 constable Inder Mohan. 5. The defence set up by the respondent was of false implication. He further asserted that he had got registered a corruption case against constable Swaran Singh, who is a close friend of Harjinder Pal Singh ASI PW-1 and in order to take revenge, ASI Harjinder Pal Singh had foisted the present case against him. 6. In defence, the respondent produced constable Baldev Singh of Police Station `C Division, Amritsar in order to prove the FIR No. 419/80, under Section 5/2/47 of the said police station against constable Swaran Singh registered at the instance of the present respondent. 6. In defence, the respondent produced constable Baldev Singh of Police Station `C Division, Amritsar in order to prove the FIR No. 419/80, under Section 5/2/47 of the said police station against constable Swaran Singh registered at the instance of the present respondent. The said FIR is Ex. DX. 7. As stated above, the learned trial Court after appreciating the entire evidence has acquitted the respondent. Hence this appeal. 8. I have heard Mr. G.S. Bhandari, learned State counsel appearing for the State of Punjab and Mr. P.S. Hundal, learned counsel appearing for the respondent. With their assistance, I have gone through the entire evidence and other relevant documents. 9. Mr. Bhandari submits that the only ground which have weighed in the mind of the learned trial Court was the defence set up by the respondent. Dwelling upon the arguments, he further contends that even if the defence of the respondent is somewhat prevalent, but at the same time, the case of the prosecution, which hinges upon the statement of two official witnesses cannot be discarded outrightly when there is no discrepancy which would uproot the case of the prosecution. He further contends that in the instant case, the recovery is heavy being 4 kgs of opium and possibly ASI Harjinder Pal Singh could not falsely implicate the present respondent in this case. 10. Relying heavily upon the aforesaid submissions, learned State counsel requests for setting aside the impugned judgment of acquittal. 11. Refuting the arguments made by learned State counsel, Mr. Hundal submits that besides the plea of defence taken by the respondent, the other infirmity which weighed in the mind of the learned trial Court was that inspite of the fact that the place of alleged recovery was a thoroughfare, no independent witness was joined by the investigating officer in this case. He then contends that the other lacuna in the case of the prosecution is that two affidavits, Exhibits PE and PF, tendered by MHC Kishan Chand and constable Kashmir Singh respectively, are defective as the verification in the said two affidavits is not technically correct. Mr. Hundal, thus, contends that the judgment of acquittal is well reasoned one and does not call for any interference. 12. Mr. Hundal, thus, contends that the judgment of acquittal is well reasoned one and does not call for any interference. 12. After hearing the rival contentions of the other side at length, I am of the view that there is no force in the instant appeal filed by the State of Punjab against acquittal of the respondent. 13. I have gone through the impugned judgment mintely. The statements of ASI Harjinder Pal Singh PW-1 and Inder Mohan constable PW-2 have also been perused. Two affidavits, Exhibits PE and PF, tendered by MHC Kishan Chand and constable Kashmir Singh respectively, have also been re-scanned. 14. ASI Harjinderpal Singh PW-1 admits in his cross-examination that he being a basket ball player had been representing the police and constable Swaran Singh had also been representing the police as kabaddi player. He further admits that he knew Swaran Singh. He further admits that constable Swaran Singh and his two other co-accused, namely, Darshan Lal and Tarsem Singh were booked in a case of corruption bearing FIR No. 419/80, Police Station `C Division, Amritsar and the said case was registered at the instance of Shiv Kumar, the present respondent. This fact is otherwise proved from Ex. DX. This witness also admits in his cross-examination that people were going to and fro at the place of patrolling and so was the situation at the place of recovery. He then admits that there were shops around the place of recovery. Admittedly, no independent witness has been joined in this case. 15. So far as Inder Mohan Constable PW-2 is concerned, he also admits that he was a hockey player. However, he showed his ignorance with regard to acquaintance with constable Swaran Singh. Some discrepancies have also crept in the statements of these two official witnesses. I am not giving much importance to those minor discrepancies, as in my view the case of the prosecution fails for the reason that inspite of the fact that there was no dearth of independent witnesses, ASI Harjinderpal Singh, the investigating officer of this case, has not bothered to join even one independent witness at the time of recovery. The matter does not rest here. Even the two affidavits, Exhibits PE and PF, tendered by MHC Kishan Chand and constable Kashmir Singh respectively, are also somewhat technically defective. The matter does not rest here. Even the two affidavits, Exhibits PE and PF, tendered by MHC Kishan Chand and constable Kashmir Singh respectively, are also somewhat technically defective. The defence set up by the respondent appears to be most probable on the face of it. In my view, the case of the prosecution is not free from doubt and as such, the benefit of doubt has been rightly extended to the respondent by the trial Court in this case. 16. As a sequel to the aforesaid discussion, the present appeal filed by the State of Punjab stands dismissed. The leave was granted in this case in March, 1989. Bailable warrants were also issued against the respondent. Mr. Hundal contends that in pursuance of the said order, the respondent had furnished his surety bond during the pendency of the present appeal. He is now discharged of the same.