Billu Singh vs State of Punjab

V.S. Aggarwal, J.

The present revision petition has been filed by Billu Singh (hereinafter described as the petitioner) directed against the judgment and the order of sentence passed by the learned Judicial Magistrate 1st Class, Jagraon dated December 9, 1986. By virtue of the impugned judgment, the learned trial court had held the petitioner guilty of the offence punishable under Section 9 of the Opium Act and sentenced him to undergo rigorous imprisonment for one and half year and pay fine of Rs. 2000/. In default of payment of fine, he was to undergo further rigorous imprisonment for a year. The appeal filed by the petitioner was dismissed by the learned Additional Sessions Judge, Ludhiana on November 26, 1987.

The relevant facts are that on August 21, 1984, a police party comprised of Head Constable Jagir Singh and Constables Nazar Singh and Pritam Singh was going on cycles from village Bassian to Raikot. When the police party reached near the minor drain bridge, Rest House, Bassian, the petitioner was seen coming from the side of the Rest House. On suspicion, he was apprehended, his search was effected, opium wrapped in polythene bag was recovered from the bag which the petitioner was holding in his right hand. The contents were weighed and were found to be three kilograms. Representative sample of ten grams was taken. It was converted into a sealed parcel. Both the parcels were taken into possession vide the recovery memo, Rukka was sent to the police station, on the basis of which formal First Information Report was recorded. Rough site plan was drawn. Subsequently, representative sample was sent for chemical analysis. On receipt of the report, challan under Section 173 Code of Criminal Procedure was submitted against the petitioner.

The learned trial court framed a charge against the petitioner for the offence punishable under Section 9 of the Opium Act. The petitioner pleaded not guilty and claimed a trial. The petitioner had denied the recovery of opium from his person. On appraisal of the oral evidence, the learned trial court held that prosecution has successfully proved its case beyond all reasonable doubts. The impugned judgment and order of sentence was passed. An appeal was preferred with the court of Sessions. The learned Additional Sessions Judge approved the findings of the trial court and dismissed the appeal. Hence the present revision petition.

At the outset, it was pointed that in the present case, no public witness has been joined. It transpired during evidence that two or three public persons had passed, but they refused to join the police party. In this regard, the necessity of joining public witnesses cannot be overemphasised. The genuine attempt should be made to join public witnesses. It is possible that in certain cases public witnesses may not be available. In some cases, they may not be willing to join the police party. It has to be considered on merits of each individual case. The position in the present case makes one to believe that all is not well with the investigation. It is not explained as to who were the public witnesses, who refused to join the investigation. It is vaguely being stated that those persons who passed were not willing to join the police party. It is, therefore, doubtful in face of what is stated above, if any such attempt was made to join the public witnesses.

This is corelated with the fact that as per the prosecution case, the case property was deposited with AMHC Jaspal Singh. It transpired in evidence that there was no Jaspal Singh posted in the police station as AMHC. In other words, no attempt was made to take care that the case property is to pass on to a safe custody of an individual. It was not given to Muharar Head Constable who was posted as such in the police station. It is not even explained that he was available or not or Jaspal Singh was discharging his duties. When the case property is passed on to a third person without cogent reasons, it is logical to conclude that no genuine attempt was made by the police party to take care of the case property and the representative sample.

Cumulative effect of the above said is, therefore, that benefit of doubt accrues to the petitioner. The impugned order cannot be sustained.

For these reasons, the revision petition is accepted. The petitioner is acquitted awarding him benefit of doubt.

Revision allowed.