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2005 DIGILAW 398 (PNJ)

Balwinder Singh v. State Of Punjab

2005-03-17

BALDEV SINGH

body2005
Judgment Baldev Singh, J. 1. Balwinder Singh son of Gurnam Singh resident of Village Sangley, Police Station Dharamkot, District Ferozepur has filed this revision petition against the impugned judgment dated 7.7.1990 passed by Sh. Beant Singh Bedi, the then Additional Sessions Judge, Ludhiana, vide which the appeal filed by the petitioner was dismissed. He was convicted under Section 9 of the Opium Act, 1878 (hereinafter referred to as `the Act) by Sh. Jaspal Singh, the then Judicial Magistrate Ist Class, Jagraon vide impugned judgment dated 19.2.1990 and was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 2,500/- and in default of payment of fine, to further undergo R.I. for six months. 2. Balwinder Singh - petitioner along with three other persons, namely; Pal Singh, Nirmal Singh and Darshan Singh was tried for the offence punishable under Section 9 of the Act in case FIR No. 265 dated 9.9.1984 registered at Police Station Sidhwan Bet. All the four of them were convicted under Section 9 of the Act and each of them was sentenced to undergo R.I. for two years and to pay Rs. 2,500/- as fine and in default of payment of fine, to further undergo R.I. for six months. They had filed appeal and Pal Singh, Nirmal Singh and Darshan Singh were acquitted as the case was not proved against them beyond every reasonable doubt. However, the conviction and sentence against the petitioner were maintained. Hence, this revision petition was filed. 3. The facts of the prosecution case are that on 9.9.1984 at about 4.30 A.M. Surjit Singh, S.I., the then SHO of Police Station Sidhwan Bet, received information against the petitioner and Pal Singh, Nirmal Singh and Darshan Singh (who have been acquitted) that they were present in the flaying ground of village Galib Ran Singh where they had staked poppy husk meant for sale and if raid was conducted, poppy husk could be recovered. FIR No. 265 was registered in this respect. A raid was then conducted at the disclosed place after joining one Gurdial Singh son of Chand Singh resident of Sidhwan Bet. As per the prosecution version, Pal Singh, Nirmal Singh and Darshan Singh ran away from the spot and could not be apprehended. Balwinder Singh - petitioner alone was apprehended. He was sitting in front of a deserted Dharamshala near the flaying ground of village Galib Ran Singh. As per the prosecution version, Pal Singh, Nirmal Singh and Darshan Singh ran away from the spot and could not be apprehended. Balwinder Singh - petitioner alone was apprehended. He was sitting in front of a deserted Dharamshala near the flaying ground of village Galib Ran Singh. He was taken into custody and was subjected to interrogation by Surjit Singh, S.I. in the presence of Gurdial Singh son of Chand Singh resident of Sidhwan Bet and Head Constable Mohinder Singh. The petitioner disclosed that he and his co-accused Pal Singh, Nirmal Singh and Darshan Singh kept concealed 25 bags containing poppy husk in a deserted Dharamshala of Harijans near the flaying ground and on hearing the rattling of the police jeep, Pal Singh, Nirmal Singh and Darshan Singh had run away. He offered to get the bags of poppy husk recovered from the disclosed place. His disclosure statement Ex. PB was reduced into writing. It was thumb-marked by him and attested by PW Gurdial Singh and HC Mohinder Singh. The petitioner in pursuance of his disclosure statement got recovered 25 bags containing poppy husk. 250 grams poppy husk was taken out from each of the said bags. The remaining poppy husk was sealed in the same bags. Each bag was found containing 40 kilograms of poppy husk. Surjit Singh, SI had used his seal bearing letters `SS on the bags of poppy husk and the seal after use was given to HC Mohinder Singh. These bags were taken into custody vide recovery memo Ex. PC. The samples were sent for chemical examination. These were found to be of poppy husk. After apprehending the companions of the petitioner, who had fled away from the spot, challan was put against all of them in the Court. 4. As stated above, the petitioner and Pal Singh, Nirmal Singh and Darshan Singh were convicted by the trial Court. However, the appellate Court maintained conviction and sentence order against Balwinder Singh - petitioner alone and acquitted Pal Singh, Nirmal Singh and Darshan Singh. 5. It is argued by the Ld. counsel for the petitioner that the prosecution case rests on the testimonies of two official witnesses, namely; PW-1 ASI Mohinder Singh and PW-2 Inspector Surjit Singh. The sole independent witness who had allegedly witnessed the recovery, namely Gurdial Singh was not examined. 5. It is argued by the Ld. counsel for the petitioner that the prosecution case rests on the testimonies of two official witnesses, namely; PW-1 ASI Mohinder Singh and PW-2 Inspector Surjit Singh. The sole independent witness who had allegedly witnessed the recovery, namely Gurdial Singh was not examined. It is argued that there are vital discrepancies in the statements of the official witnesses. These are not corroborated by any independent evidence as PW Gurdial Singh, sole independent witness has not been examined. As such no implicit reliance can be placed on them to convict the petitioner. The appellate Court ignored the discrepancies by merely writing that the evidence of Mohinder Singh, ASI and Surjit Singh, Inspector is free from any material discrepancy. The appellate Court further observed that on account of non- examination of PW Gurdial Singh, independent witness, no dent was caused in the prosecution case. This approach, in my opinion, is not legal. In view of the fact that the statements of the official witnesses are discrepant and independent corroborative evidence is lacking, the factum of the alleged recovery is rendered doubtful. PW-1 Mohinder Singh, ASI deposed that the jeep was parked at a `kacha path leading to `Hadda Rori and it was not taken to the place where the bags of poppy husk were recovered. According to PW-2 Surjit Singh, Inspector, it was taken right up to the place where the bags of poppy husk were lying. They are again discrepant about the weighing scale and the weights with which the poppy husk was weighed. According to Mohinder Singh, ASI a weighing scale known as `kanda was brought from the village. Two weights each 20 kilogram were also brought. Weights of small volumes 50 grams, 100 grams and 200 grams were already with Surjit Singh, SI. Surjit Singh, Inspector (PW-2) deposed contradictory that the weights and the weighing scale were with them. So, this is one aspect of the case. 6. The police already knew that poppy husk had been staked in the flaying ground of village Galib Ran Singh. The disclosure statement of the petitioner was fabricated so as to fasten his individual liability. Otherwise the bags of poppy husk could be recovered if a search had been made of the flaying ground. Moreover, the sole independent witness, namely Gurdial Singh has not supported this factum of recovery. 7. The Ld. The disclosure statement of the petitioner was fabricated so as to fasten his individual liability. Otherwise the bags of poppy husk could be recovered if a search had been made of the flaying ground. Moreover, the sole independent witness, namely Gurdial Singh has not supported this factum of recovery. 7. The Ld. counsel for the petitioner pointed out that the link evidence in this case is missing. There is plausibility in his contention. The affidavits of MHC Teja Singh, Ex. PA/1 and Ex. PF of Constable Inderjit Singh have not been properly verified. The verification of an affidavit should be either on the knowledge or the information of the deponent and it should be specifically stated as to which part of the affidavit is verified on knowledge of the deponent and as to which part is verified on the information of the deponent. In this respect, the case of Harjit Singh v. State of Haryana, 1988(1) CLR 81 can be referred to. If these affidavits are expunged from evidence, the intactness of the case property is not proved. In view of the above discussed legal infirmities in this case, the impugned judgment passed by the appellate Court dated 7.7.1990 is set aside. The petitioner is acquitted of the charge framed against him under Section 9 of the Act and this petition is accordingly allowed.