Ajit Singh vs State of Punjab

B.S. Yadav, J.—Ajit Singh petitioner was convicted under section 9(a) of the Opium Act by learned Sub Divisional Judicial Magistrate, Tarn Taran, and sentenced to undergo rigorous imprisonment for 1 year and to pay a fine of Rs. 2000/. Imprisonment in default of payment of fine was also awarded. The petitioner filed an appeal which was heard by learned Additional Session Judge, Amritsar. He did not find any merit in appeal and dismissed the same.

The prosecution story in brief is that on 22nd July, 1979 P.W.1 A.S.I. Mohinder Singh and P.W.2 S.I. Jagdish Singh alongwith some other police officials were on patrol duty. When they were about 1Km. from village Seron, the petitioner was seen coming from the side of his tube well. On suspicion being raised, the petitioner was apprehended. His personal search yielded 5kgs. of opium. 10 grams of opium was separated as sample. The sample and the remaining opium were separately converted into sealed parcels. S.I. Jagdhish Singh sent ruqa Exhibit PB to the police Station, Sadar Tran Taran, and on its basis first Information Report Exhibit PB/1 was recorded. The sealed parcel of the sample was sent to the Chemical examiner. Vide his report Exhibit PD he opined that the contents of the sample were opium. After necessary investigation the petitioner was chargesheeted.

To connect the petitioner with the offence the prosecution examined the above witnesses and also tendered in evidence the affidavits of some formal police officers.

At the close of the prosecution evidence the petitioner was examined under section 313 of the Criminal Procedure Code. He denied the prosecution allegations and pleaded that he was arrested from his village and was brought to the police Station and was detained there for about a week and then was falsely involved in this case. In his defence he produced Exhibit DB which is copy of a complaint dated 20th September, 1978 which he had filed against Iqbal Singh then Station House Officer, Police Station, Taran Taran, A.S.I. Gian Singh and Balwant Singh constable who were also then posted in that Police Station, in the court of Judicial Magistrate, Amritsar.

The learned counsel for the petitioner argued that in the present came only year prior to the present occurrence the petitioner had lodged a complaint in the court of Judicial Magistrate against police officials then posted in Taran Taran and, therefore the present police officers of that police station who are said to have recovered opium from the petitioner, cannot be said to be unbiased against the petitioner. He further argued that no unofficial witness was joined by the police party at the time the search of the petitioner is said to have been effected and opium is said to have been recovered from him. According to him the present story appears to be a concoction because both P.W.1 A.S.I Mohinder Singh and P.W.2 S.I Jagdish Singh have not stated how suspicious was aroused against the petitioner who at the relevant time was simply returning along a pagdandi from the side of his tubewell. I need not got into this argument because there is one circumstance into he present case which goes to show that the prosecution has failed to prove that the sample that was sealed at the spot reached the Chemical Examiner untempered. Both P.W.1 A.S. I. Mohinder Singh and P.W. 2 S.I. Jagdish Singh gave stated that out of the bulk, 10 grams of opium as sample was separated after weighment and that sample was sealed at the spot. The sample was said to have been deposited into he Malkhana on 22nd July, 1979 vide affidavit Exhibit PE of M. H.C. Vasdev Singh. In this affidavit also the weight of the sample of opium is given as 10 grams. It is not understood why the sample was not sent immediately tot he Chemical Examiner. It remained lying in the Malkhana upto 6th August, 1979 on which date the sample was deposited in the office of the Chemical examiner vice affidavit Exhibit PE of constable Satwant Singh. However, the report of the Chemical Examiner shows that the quantity of opium received by him as sample weighted only 5 grams. Admittedly, in the present case the seal after use was not handed over to any independent witness. It is said to have been handed over to P.W.1 A.S.I. Mohinder Singh. (By these remarks it may not be construed that it is necessary that the seal used in sealing the sample should be handed over to some independent witness). Thus there was no difficulty in tempering with the sample while it was said to be lying in the Malkhana. The prosecution has not given any explanation about the shortage of opium in the sample, The learned counsel for the petitioner was justified in urging that the above circumstance caused suspicion in the mind of the Court about the genuineness of the sample sent to the Chemical Examiner.

For the foregoing reasons I accept the present revision petition and set aside the conviction and sentence of the petitioner and a quit him of the charge framed against him. Fine, if paid, be refunded to him.