Darshan Singh vs State of Haryana

V.S. Aggarwal, J. (Oral)

The revision petition is directed against the judgment and the order of sentence passed by the learned Judicial Magistrate, Panipat and the dismissal of appeal by the learned Sessions Judge, Karnal.

The relevant facts giving rise to the present revision petition are that on 21.6.1985 SI Kartar Singh alongwith other police officials were going in connection with the investigation of a case under the Gambling Act. The case was against one Devinder Singh. When he was returning from that place and reached near Bus Stand, Panipat near the Octroi post a person was seen coming from the side of bus stand. On seeing the police party, he tried to turn back towards the shop of a barber situated in the campus of the bus stand. On suspicion the petitioner was stopped.

Petitioner was interrogated and he disclosed his name to be Darshan Singh son of Gopal Dass. The person of the petitioner was searched. He was holding a bag in his right hand. It was checked and found to be containing opium wrapped in a wax paper. The contents were weighed and found to be 1 kilogram of opium. 20 grams was taken as the sample. The sample and the rest of the opium were converted into two separate parcels and sealed with the seal of ''KS''. The packets were taken into possession vide a recovery memo. Ruqa was sent to the police station through Mohan Lal on the basis of which formal first information report was recorded. The sample and rest of the opium were deposited in the Malkhana. The representative sample was sent for chemical analysis. On receipt of the report, challan against the petitioner was filed.

The defence of the petitioner was that no recovery of opium was effected from him and that he was falsely implicated. He did not produce any defence.

The learned trial court relied upon the oral testimonies of SI Kartar Singh and ASI Siri Ram and concluded that these established beyond all reasonable doubt that opium was recovered from the person of the petitioner. The trial court held that there is no bar in acting on the testimonies of the official witnesses. With these findings, the judgment dated 18.7.1986 and the order of sentence convicting the petitioner for six months'' rigorous imprisonment and a fine of Rs. 1000/ followed. In default of payment of fine, he was to undergo further simple imprisonment for two months. The petitioner preferred an appeal. The learned Sessions Judge dismissed the appeal and affirmed the findings of the learned trial court. As a consequence of that, the present revision petition has been filed.

Learned counsel for the petitioner argued in the first instance that no public witness had been joined and in the facts of the case conviction should not be based on the testimonies of the official witnesses. In the peculiar facts of the present case, the said plea must prevail. The recovery had been effected at the bus stand. It is not being disputed that it is a crowded place. Large number of persons pass through that place. There are shops nearby. It is somewhat surprising that still the explanation is forthcoming that the witnesses from the public were not available. The only conclusion that can be drawn in such a situation is that no genuine attempt or even an attempt to join the public witnesses was made. When genuine attempt has not been made to join the public witnesses, one is constrained to observe that in the facts of the present case, it is difficult to believe the official witnesses.

This conclusion has to be so arrived at because of the facts and circumstances of the case. When the Investigating Officer SI Kartar Singh stepped into the witness box, he stated that he already knew the accusedpetitioner. His attention was drawn to the ruqa where it had been recorded that when petitioner was stopped, his name was enquired and on interrogation he disclosed his name as Darshan Singh. If the petitioner was already known, question of making such an enquiry did not arise. One cannot restrict in these circumstances but to observe that what is being stated by SI Kartar Singh cannot be accepted on its face value. Suppression and mis statement of facts go galore. It would be difficult, therefore, to believe the official witnesses in the facts of the present case. It cannot be held that prosecution has proved its case beyond all reasonable doubt.

For these reasons, the revision petition is accepted. The judgments and the order of sentence of the courts below are set aside. The petitioner is acquitted giving him the benefit of doubt.