Bawa Singh vs State of Haryana

J.S. Sekhon, J.

On September 15, 1982, on the basis of secret information, A.S.I. Bhoop Singh of Police Station Baramgudha, alongwith Head Constable Jai Dayal raided the house of Bawa Singh petitioner in the area of village Rohon and recoved two kilograms of opium from the search of his house. The Trial Court, believing the evidence of H.C. Jai Dayal and A.S.I. Bhoop Singh, convicted the accused petitioner under section 9 of the Opium Act and sentenced him to undergo six months'' rigorous imprisonment and a fine of Rs. 500/ or in default of payment thereof to further suffer three months'' rigorous imprisonment. The appeal filed by the accusedpetitioner against the above referred conviction and sentence was, dismissed by the Sessions Judge, Sirsa, vide his order dated April 5, 1986. Still being aggrieved, the accused has come up in this revision petition.

Mr. D.S. Bali learned Senior Advocate, contends firstly that the recovery of the opium from the possession of the accused was not established. The second limb of his argument is that the prosecution had failed to house from that the accused was the only adult male member residing in the prove that where the opium was recovered. Mr. J.B. Tacoria learned counsel for the State, on the other hand, supported the findings of the Courts below.

Admittedly, the house of the accused petitioner was located in the habitation of village Rohon and A.S.I. Bhoop Singh had conducted the raid at the house of the accused at 12.45 P.M. on the basis of secret information. There was ample time at the disposal of this police officer to join respectable persons of the locality, but strange enough, he failed to do so. At the trial H. C. Jai Dayal (PW 1) came forth with the explanation that no respectable of the village was prepared to join the raiding party even though he had contacted certain persons (sic), In the next breath he had to admit during crossexamination that he had not given such a version in his statement recorded under section 161 of the Code of Criminal Procedure and that he has stated this fact for the first time. Similar is the version of A.S.I. Bhoop Singh (PW 2). Under these circumstances, there is no escape but to conclude that both these police officials are eager to secure the conviction of the accused by hook or crook as they had gone to the extent of improving upon their version relating to nonjoining of respectable persons of the locality. In a way it can be well said that the are interested in the success of the case. If that is so, then a check of due caution has to be applied for appraising their evidence. A close scrutiny of the evidence of these two official witnesses leaves no room fordoubt that the opium was not recovered in the manner stated by them. It is highly improbable that the culprit would keep a contraband article like opium wrapped in a piece of cloth in a corner of the residential room because it will attract the attention of a casual visitor to that house. On the other hand, normally such like articles are kept buried under the earth or concealed in a box or in some bags of grain etc. Moreover, during day time the approach of the police in a village would attract the attention of the villagers and the accused was bound to notice the same. Obviously, the accused would try to dispose of or conceal the opium on the approach of the police if he was in its conscious possession. Thus, it is not believable that the opium was recovered in the abovereferred manner from the house search of the accused. The matter does not rest here as according to H. C. Jai Dayal the scale and weights were available at the house of accused and the same were used for weighing the opium and its sample, but according to A.S.I. Bhoop Singh he was carrying the scale and weights in his own bag. This contradiction in the evidence of these witnesses would not have cropped up if actually the opium was recovered in the manner stated by them.

The police officials being interested in maintaining peace in their area are obviously agitated against the members of the Kissan Union which indulges in organizing protest marches etc, against the authorities. The accused had alleged so in his statement recorded under section 313 of the Code of Criminal Procedure. A simple denial on the part of the police officials in this regard is thus of no consequence. Thus it cannot be said that police had no grudge against the petitioner.

The most glaring aspect of the matter is that the prosecution had failed to establish the accused being, exclusive possession of the house in dispute. During crossexamination, H.C. Jai Dayal failed to contradict version of the defence that the accused along with his three adult brothers used to reside in the said house. It was not put to the accused during the recording of his statement under section 313 of the Code of Criminal Procedure that the opium was recovered from the house exclusively possessed by him. Thus, the accused was not required to explain that he was occupying the house along with his three brothers. The onus to prove the conscious possession of opium by the accused was on the prosecution, but it has failed to discharge the same. Thus even if the recovery of opium from the above referred house is taken to be true, the same is of no consequence.

For the foregoing reasons, this revision petition stands accepted and the conviction and sentence of the petitioner are set aside. The fines, if paid, shall be refunded to the accusedpetitioner.