Baldhir Singh vs State of Punjab

A. S. Nehra, J.

Petitioner was convicted under Section 9 of the Opium Act, 1878 and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2 000/ and in default of payment of fine he was further ordered to undergo Rigorous Imprisonment for four months on 3121985 by the Judicial Magistrate, Ist Class, Bhatinda. Appeal filed by the petitioner was partly allowed and the sentence of imprisonment was reduced from two years to one year and the sentence of fine was reduced from Rs. 2000/ to Rs. 1000/ and in default of payment of fine he was ordered to undergo RI for two months instead of RI for four months, by the Session, Judge, Bhatinda on 2141986. Hence this revision petition.

The prosecution case in nutshell is as follows:

"On 20.9 82 a police party headed by ASI (Now SI) Banchan Singh, PW2 in a jeep with El. Raghabans Singh, PW1 was proceeding from village Kolu to village Kothe Chapriwala. While the said police party was near the Nala in the area of village Kolu,Baldhir Singh accused was spotted approaching from the western side of the drain. He was secured when he aroused suspicion by attempting retreat at the sight of the police party. On search opium weighing 9 kgs. wrapped in a glazed paper was recovered from a gunny bag carried by him 20 gms. therefrom was separated as sample and this sample and the remaining opium were separately sealed and the case property seized vide memo Ex. PA. On further search a country made. 303 bore pistol and 2 live cartridges were recovered from the accused about which a separate case under the Arms Act, 1959 was registered against him. An amount of Rs 155/ recovered on personal search was taken into possession vide memo Ex.PB. Ruqa Ex. PC sent by ASI to P. S. Nehianwala formed basis of the registration of this case. The sample was in due course sent to Chemical Examiner whose report is Ex. PE.

In order to prove the charges against the accused, the prosecution examined Raghubans Singh EI as PW1 and Bachan Singh as PW2. The facts of the prosecution case, as deposed by ASI Bachan Singh are that on 20.9.1982, he alongwith H.C Malkiat Singh and H. C Nagaur Singh and other police officials went to village Ablu in a jeep from where Raghubans Singh EI was joined; that thereafter, they were going from village Ablu to ''Kothe Chapri Wala and when the police party reached near the rainy drain (Salm Nallah) in the revenue limits of village Ablu, the accused was spotted coming from the west; that on sight of the police Party, he turned back and was apprehended on suspicion; that when search was conducted as per rules, opium was recovered from the gunny bag being carried by the accused on his right shoulder; that the opium came out to be .9 kilograms on weighment that 20 gms of opium was separated as sample and the remaining opium was put in a tin and separate parcels were prepared; that both the parcels were sealed with the seal of El Ragubans Singh bearing impression ''RSG''; that the sample seal was separately prepared and the seal was entrusted to EI after its use; that the parcels were taken into possession vide recovery memo Ex. PA; that on further search of the accused country made pistol of .303 bore was recovered along with two live cartridges and separate proceedings were carried out against the accused for the same and that apart from this, Rs. 145. were also recovered from the accused and the same were taken into possession vide memo Ex. PB. He further stated that Ruqa Ex PC was sent to the police station, on the basis of which, formal FIR Ex. PC/1 was recorded by ASI Baj Singh; that he Also prepared the rough site plan Ex. PQ; that on return to the police station, the sample and the case property was deposited with AMHC Cheta Singh and that on completion of investigation, challan against the accused was prepared, The other prosecution witnesses also corroborated the statement of ASI Bachan Singh. Both the witnesses were subjected to lengthy crossexamination. Report of Chemical Examiner Ex. PE and affidavits of formal witnesses Ex PF and PG were tendered into evidence.

In his statement under Section 313 Criminal Procedure Code the accused denied the allegations against him and pleaded that on 1991982 he and one Nathu were arrested at the same time by the police that the opium was recovered from said Nathu; that he (accused Baldhir Singh) was called upon by the police to be a witness against said Nathu and that on his refusal he Baldhir Singh accused) on 1991982 was detained by the Police till 2091982 when this case was foisted on him. In his defence the accused examined Mahant Piara Dass DW1 Pritam Singh DW2 and Jarnail Singh Chowkidar DW3.

Learned counsel for the petitioner has contended that the prosecution case is to be viewed with suspicion as Excise Inspector Raghubans Singh had been associated with the police party at the time the petitioner is said to have been intercepted and the opium recovered from him. There is nothing unnatural or improbable on the part of ASI heading the police party to have joined the Excise Inspector as the police party met him at the liquor vend of village Ablu. The prosecution case is not open to doubt on this score.

Learned counsel for the petitioner has pointed out that there are major and material discrepancies between the statements of the two prosecaution witnesses. The discrepancies. pointed out are that whereas PW1 speaks of his being in Government jeep No 2156 and to be accompanied by a peon, ASI Bachan Singh PW2 is silent as to the peon and he makes mention merely of joining Excise Inspector with the said government jeep when be met him at the liquor vend. The learned counsel has further pointed out that the Excise Inspector PW1 when crossexamined maintained that he had returned to Bhatinda while ASI Bachan Singh PW2 went to the police station whereas ASI on the contrary would have the Court believed that the Excise Inspector had returned with the police party to the police station and from there he had been permitted to go his way. These minor discrepancies are bound to occur as the witnesses were examined after more than two years and the above mentioned discrepancies have not demolished the prosecution cast The defence version is nothing but an attempt on the part of the appellant to save his skin and is not believable. The recovery is of as much as 9 kgs of opium and this could not well be case of plantation. After hearing the learned counsel for the parties I am of the opinion that the case of the prosecution is fully proved from the evidence of PWs 1 and 2, who have no motive to depose falsely against the petitioner. Therefore, conviction of the petitioner is upheld.

Mr. M. L. Sarin, learned counsel for the petitioner, has further submitted that the petitioner is entitled to be released on probation under Section 360 of the Code of Criminal Procedure. Mr. N. S. Boparai, AAG, Punjab, has contended that the petitioner cannot be granted probation because he was convicted under Section 25 of the Arms Act and he has been released on probation in that case. I find force in the argument advanced by the learned counsel for the State and hold that the petitioner is not to be released on probation under Section 360 of the Code of Criminal Procedure. In view of the above discussion, there is no merit in the revision petition and the same is dismissed.