Chaman Lal vs State of Punjab

N.K. Agrawal, J.

This is a revision petition against the order of conviction and sentence passed against Chaman Lal under Section 9(a) of the Opium Act. The accused was tried by the Sub Divisional Judicial Magistrate, Jagraon, for the offence under Section 9(a) of the Opium Act and sentenced to simple imprisonment for four months and fine of Rs. 200/ (or in default of payment of fine to further simple imprisonment for one month). The Additional Sessions Judge, Ludhiana rejected his appeal.

The case of the prosecution was that on January 1, 1984, Head Constable Baldev Singh and three Constables including Surinder Pal Singh of Police Station Jagraon were proceeding from Village Kaonke Kalan to Village Dangian on patrol duty. They saw the accused, Chaman Lal, at about 9.20 a.m. The accused had wrapped himself with a cotton blanket (Khes). The police officials made some enquiries and thereafter conducted a search of the cotton bag hanging on the right shoulder of the accused. Opium weighing 2 Kgs. was found in the bag. Sample of opium weighing 10 gram was taken and was sealed in a separate parcel. The remaining opium was also separately sealed by the Head Constable, Baldev Singh. The incident was reported to the SHO, P.S. Jagraon, upon which a case was registered against the accused. The sample was sent to the Chemical Examiner for analysis and after receipt of the report, a challan was filed against the accused Chaman Lal. Head Constable Baldev Singh and Constable Surinder Pal Singh proved in the trial court the recovery of the opium from the accused.

The learned counsel for the accused has argued that no independent witness was called by the police officials at the time of search, though the search was made on the main path leading from one village to another. There is nothing to show that no independent witness was available there at that time. Since it was a public thoroughfare, absence of any independent witness during day time at the time of seizure creates a doubt. The learned counsel has submitted that there are discrepancies in the statements of the prosecution witnesses as well. Baldev Singh states that the seizure took place at 8 p.m. whereas ruqa mentioned seizure at 9.20 a.m. Further, the affidavits of the two police officials filed in the trial court regarding the custody of the samples are not properly verified. The verification of the affidavits should be distinctly clear as to the facts which are true to the knowledge of the deponent and the facts which are believed to be true on the basis of the information. Section 297(2) of the Cr.P.C. requires a specific verification of the facts which are within the knowledge of the deponent and the facts which are stated on the basis of information. The learned counsel has further argued that the incident took place in the year 1984 and it would not be now expedient to send the accused to prison 14 years after the alleged occurrence. The age of the accused was 51 years at that time and now he is aged 65 years.

Learned counsel for the accused has placed reliance on a decision of this Court in Mohinder Singh v. The State of Punjab, 1987 CC Cases 252 (HC). It was held in that case that where no independent witness had joined from the locality at the time of search and seizure, the accused was entitled to the benefit of doubt. Similar view was taken in Mohinder Singh v. The State of Punjab, 1987 CC Cases 510 (HC). In that case the accused was alleged to have been in possession of 35 bottles of illicit liquor. Conviction was based on the evidence of official witnesses, whose statements were found to be irreconcilably contradictory on material facts. The petitioner was acquitted.

In Harjeet Singh v. The State of Haryana, 1987(2) Recent C.R. 217, a matter about the improper verification of the affidavit was considered and it was held that such an affidavit has to be excluded from evidence. Since the important link was missing, the accused was given the benefit of doubt.

In Rameshwar v. State of Haryana, 1995(3) Recent C.R. 716, a question again came up for consideration with respect to the affidavits of the police officials. The affidavits were not verified properly. The deponents did not mention as to which part of the affidavit was based upon personal knowledge and which part was based on belief. The affidavits were held to be inadmissible in evidence.

In Ramesh v. State of Haryana, 1998(1) RCR 146, it has been held that where no independent witness was present at the time of recovery of the opium, no reliance can be placed on the official witnesses.

On a consideration of the matter, it is found that no plausible explanation has been given as to why no independent witness was associated with the proceedings of search and seizure. There is no dispute to the fact that the accused was seen on a public thorough fare. The police party had opportunity to secure an independent witness before making the search and seizure. In the absence of any plausible explanation as to the inability to secure an independent witness, the case of the prosecution cannot be accepted beyond reasonable doubt. Further, the two affidavits, filed by the prosecution in respect of the custody of the samples, also do not inspire much confidence in the absence of proper verification. It is not clear if the police officials, filing their affidavits, had given details on the basis of their own personal knowledge or on the basis of information in their possession.

In the light of the above, the plea of the learned counsel for the petitioner is found to have merit and it is, therefore, accepted. The revision petition, thus, stands allowed and, giving the benefit of doubt, the accused, Chaman Lal, is acquitted of the offence under Section 9(a) of the Opium Act.