Amrik Singh vs State of Punjab

S.S. Dewan, J.

Amrik Singh petitioner was convicted under S. 9 of the Opium Act for having got recovered 65 kgs. of opium from the specific place of concealment and was sentenced to 3 years rigorous imprisonment, and a fine of Rs. 5000/ by the Judicial Magistrate Ist Class, Zira, on, 21st of March 1979. On appeal, the conviction of the petitioner was maintained but his sentence was reduced to 2 years rigorous imprisonment and the fine A as reduced to Rs. 3000/ by the learned Additional Sessions Judge Ferozepur, by his judgment dated August 19, 1990. The petitioner has now come up in revision.

The prosecution case is a typical one of recovery at the instance of the accused. It is alleged that on August 18, 1976, at about 6 a.m. SubInspector Gurchetan Singh received secret information that Amrik Singh accused was keeping opium in his house at village Ghuduwala. The SubInspector alongwith the members of the police party reached village Ghuduwala and after joining Sohan Singh, Bohra Singh and Waryam Singh raised the house of the accused,. who was then present at his house. He was as taken into custody and no interrogation by the SubInspector, he suffered disclosure statement leading to the recovery of 4 packets and a bundle containing opium which were lying buried near the northern wall of his house. The opium weighed 65 kgs. in all. After completing the formalities, all the five samples were sent to the Chemical Examiner for analysis. They were found to be of opium vide report, Exhibit P.E. The prosecution case primarily rested on the testimony of SubInspector Gurchatan Singh and Assistant SubInspector Lachman Singh. The accused denied the prosecution allegations, and pleaded false complicity in the case. Raj Kumar was, however, examined in defence.

The less it is said about the recovery of incriminating article from the petitioner, the better it wound be. SubInspector Gurchatan Singh interrogated the petitioner in the presence of Sohan Singh, Bhora Singh and Waryam Singh and the petitioner was stated to have made the disclosure statement leading to the recovery of opium from the specified place of concealment. It is no longer a secret that the police had been making indiscriminate use of S. 27 of the Evidence Act and as such, confidence of the Courts in the matters relating to making disclosure statement by an accused and discovery of incriminating article in consequence thereof, has been considerably shaken. Therefore, a very strong proof of highest standard is insisted upon, for finding. that an accused did suffer disclosure statement and incriminating article was discovered in consequence thereof SubInspector Gurchetan Singh and Assistant SubInspector Lachhrnan Singh being Investigating Officers may be subconcesiously interested in the case. The aforesaid 3 eyewitnesses joined by the police who allegedly witnessed the recovery of opium, have been withheld by the prosecution. I am, therefore, not satisfied that the officials witness examined by the prosecution are of the requisite standard on the basis of which it can be safely held that the petitioner had suffered disclosure statement attributed to him, much less that the incriminating article had been discovered in consequence of his disclosure statement. Therefore, firstly the evidence respecting discovery of the incriminating article, inconsequence of the disclosure statement attributed to the petitioner is not dependable and secondly, the discovery does not advance the prosecution case because the testimony or the two official witnesses being discrepant cannot be accepted as reliable. SubInspector Gurchetan Singh stated that the disclosure statement, the recovery memo and other papers were not prepared by him but were prepared by Assistant SubInspector Lachhman Singh. But according to Lachhman Singh, the pavers were not prepared by him but were prepared by SubInspector Gurchetan Singh.

It emerges from the record that Sohan Singh and Bhora Singh, who allegedly witnessed the recovery of opium, were given up by the prosecution as won over and Waryam Singh, to whom the sea] was handed over, was given up as. unnecessary. It is true that all witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential should be called. It was said that Sohan Singh and Bohra Singh were won over and, therefore, the prosecution could not examine them. it is well known that on the mere representation made by the Public Prosecutor that the witness has been won over, was not conclusive of the question that the witness has been won over. In such a case, these witnesses could have been produced for cross by the accused. That would have elicited the correct facts. If Sohan Singh and Bohra Singh had witnessed the recovery of opium, the accused was entitled to test their evidence. It was incumbent on the prosecution to examine these witnesses atleast to corroborate the evidence of the official witnesses.

On this state of things when I am left with the impression that the official witnesses have not spoken the truth, no Verdict of guilt can be recorded against the petitioner. It is matter of great regret and concern of this Court that the alleged recovery of 65 kgs. of opium, nobody would be, punished, but the inclination to punish the accused has got to he checked if the Court is not sure of his guilt. The responsibility for the failure of the conviction must squarely rest on the prosecution witnesses who were incharge of the prosecution. Consequently I accept the revision petition set aside his conviction and sentence and acquit him. He need not surrender to. his bailbonds. The fine, if, paid, shall be refunded to him.