Bakshi Ram vs State of Punjab

S.S. Grewal, J. (Oral)

The petitioner was tried under Section 9 of the Opium Act, 1878 for recovery of 40 bags of poppy husk and was sentenced to undergo rigorous imprisonment for 11/2 years and to pay a fine of Rs. 1000/. In default of payment of fine he was ordered to undergo further rigorous imprisonment for two months, vide order of Judicial Magistrate Ist Class, Jalandhar, dated 25th October, 1985. Appeal filed by the petitioner against the order of conviction and sentence passed by the trial Magistrate was dismissed vide order of Additional Sessions Judge, Jalandhar dated 18th of September, 1986. Aggrieved against the orders of conviction and sentence passed by the courts below the petitioner has filed the present revision petition.

In brief facts of the prosecution case are that on 16.1.1983, Inspector Sucha Singh of C.I.A. staff, Jalandhar, received a secret information against the present petitioner that he had kept concealed sufficient quantity of poppy husk in the Kup of Turi of Nirmal Singh in the area of village Chandpur. On the basis of the said secret information a case was registered at the Police Station. Thereafter ASI Udham Singh and police officials were joined in the police party which went to the place already disclosed in the secret information. At that time, the petitioner was seen taking out one gunny bag of poppy husk from the Kup of Turi. On seeing the police party he became panicky and leaving the said gunny bag he succeeded in running away from the spot and could (sic) containing 40 kgs of poppy husk including the bag which had been left by the petitioner near the spot were taken into possession through seizure memo after taking out 100 grams of poppy husk as sample from each gunny bag. The samples and the gunny bags were duly sealed and taken into possession through seizure memo. After completion of the investigation and on receipt of the report of the Assistant Chemical Examiner, Amritsar, the petitioner was challaned, tried, convicted and sentenced as stated earlier.

The learned counsel for the parties were heard.

According to ASI Udham Singh the petitioner was seen by the police party from a distance of 10 or 12 Karams. It is difficult to believe that from such a short distance the police could not apprehend the petitioner particularly when police party consisted of about 15 persons and the petitioner himself is aged about 40 years. On the other hand, according to Inspector Sucha Singh the petitioner was seen from a distance of 200 to 300 Karams. Thus there is material contradiction with regard to the distance from which the petitioner was seen.

Another important aspect of the case is that there is no legal, cogent or reliable evidence on the record to prove that the Kup of Turi belonged to the petitioner himself. According to the prosecution story the said Kup belonged to Nirmal Singh from whom the petitioner has allegedly purchased the same. However, no evidence worth the name has been brought on the record to prove that the petitioner had purchased the Kup of Turi from Nirmal Singh.

Another significant aspect of the case is that the link evidence in this case is incomplete. Verification of the affidavit of MHC Raj Mal, Constable Makhan Singh and Constable Shangara Singh, who allegedly remained in possession or took the samples of poppy husk to the office of the Assistant Chemical Examiner, is defective. Verification of these affidavits is to the effect that the affidavits are correct, nothing is false and nothing has been concealed therein. According to the High Court Rules and JUDGMENTs Vol. IV Chapter XII, for proper verification of the affidavits it is obligatory that the deponent in each case must specify as to which part of the affidavit is based on his personal knowledge and which other part is based on information. Since the verification of the three affidavits of the police officials in this case is defective, these affidavits cannot be legally read in evidence. It is quite patent that the link evidence in this case is incomplete. Thus it cannot be reasonable inferred that the bags where from the samples were taken and sent for analysis in the case contained poppy husk. Besides the prosecution has not led any legal, cogent or reliable evidence to prove that the petitioner was in exclusive possession to the Kup of Turi from where the gunny bags are alleged to have been recovered in this case.

For the foregoing reasons, I hereby accept this revision petition, set aside the orders of conviction and sentence passed by the courts below against the petitioner and giving the benefit of doubt, I hereby acquit him. Fine, if realised, shall be refunded to the petitioner.