Aad Lal vs State of Punjab

Nirmal Singh, J.—The prosecution story, in brief, is that on 6.5.1984, SI Gurpal Singh along with ASI Harbans Lal and other police officials held a Naka in the area of Rup Nagar on the Indo-Pak Border when at about 4.00 A.M. in the intervening night of 6/7.4.1984 both the accused entered into India from Pakistan Side. They were asked by SI Gurpal Singh to stop. Accused Aad Lal was arrested at the spot and flat crepe cloth made in Pakistan was recovered from him which was taken into possession vide recovery memo Ex. PA. His further searched resulted in the recovery of Rs.350/- which was also taken into possession vide recovery memo Ex. PB. Country made pistol along with cartridges was also recovered for which a separate case was registered. On completion of investigation, challan against the accused was presented in the court. Accused were charged u/s 3 of the Indian Passport Act to which they pleaded not guilty and claimed trial.

To prove its case, the prosecution examined HC Harnam Singh, PW1, HC Nirmal Singh, PW2, HC Krishan Kumar PW3 and closed its evidence.

When examined u/s 313 Cr. P.C. to explain the incriminating evidence against them, the accused/petitioners have denied simplicitor and pleaded false implication. In their defence, they examined Jattu Ram DW1 and Gurditta, Ex. Sarpanch DW2.

After hearing the learned APP for the State and counsel for the accused/ petitioners, the petitioners were convicted and sentenced to undergo rigorous imprisonment for a period of three months by Judicial Magistrate 1st Class, Fazilka u/s 3 of the Indian Passport Act. Aggrieved by the order, the petitioners preferred appeals before the Additional Sessions Judge, Ferozepur and the same were also dismissed vide order dated 2.8.1990. Aggrieved by the orders of the Courts below, the present revision petition has been preferred.

Shri M.S. Sidhu, learned counsel for the petitioners submitted that there is no evidence on the record to show that the petitioners have entered in Indian territory from the side of Pakistan. He further submitted that it is the case of the prosecution that the petitioners were apprehended within the Indian territory at a distance of 1-1/2 kms. Learned counsel further submitted that the petitioners are Indian territory freely. He further submitted that there is no evidence on the record to show that the petitioners have entered in the Indian territory by crossing the border from the side of Pakistan. Even as per the prosecution, the petitioners have crossed the border and then have entered in the Indian territory. He contended that none of the witnesses have stated that the petitioners have entered in India from Pakistan side by crossing the border. Till it is proved that the petitioners are apprehended by crossing the international boundary, no offence is made out.

The prosecution has to prove that the petitioners have entered in India from outside without passport. But in the instant case, the prosecution has miserably failed to prove that the petitioners entered India from the side of Pakistan. The witnesses i.e. PW-1 HC Harnam Singh, PW-2 HC Nirmal Singh, and PW-3 Krishan Kumar have also not deposed in their statement that they have seen the petitioners were apprehended 1/ 2 km short of the Indo-Pak Border. When the prosecution has failed to prove that the petitioners have entered the Indian territory by crossing the order then the charge is not sustainable.

For the reasons mentioned above, this criminal revision is accepted. The order of conviction and sentence passed by the Judicial Magistrate, Fazilka dated 19.9.1988 and affirmed by the Additional Sessions Judge, Ferozepur vide order dated 2.8.1990 is set aside. The petitioners are on bail. Their bail bonds and surety bonds stands discharged.