Dharam Singh vs State of Punjab

H.S.Rai, J.

Dharam Singh petitioner was convicted by Judicial Magistrate 1st Class, Batal a vide his order dated August 26, 1985, under section 9 of the Opium Act and sentenced to undergo R.I. for two years and to pay a fine of Rs. 2000/, in default of payment of fine further R.I. for nine months his appeal was dismissed by Shri M. L. Singhal, Addl. Sessions Judge. Gurdaspur, vide his order dated November 8, 1985, with the slight modification in the sentence which was reduced from two years R.I. to 11/2 years R.I. Feeling aggrieved, he has filed this revision.

The prosecution case is that on July 10, 1981, A.S.I. Puran Chand along with H.C. Babu Ram, H.C. Muni Lal etc. was going towards village Shekhupur from Batala on patrol duty. When they reached near the byepass, Mohinder Singh met them. He was joined. On the turning of village Basarpura, the petitioner was sighted coming on a cycle. On suspicion he was apprehended and on his personal search opium weighing 25 Kgs. was recovered from a gunny bag hanging around the carrier of his cycle which he was riding. After necessary investigation, he was challenged convicted and sentenced, as mentioned in the earlier part of the judgment.

In support of its case, prosecution examined H.C. Muni Lal, PW2 and A.S.I. Puran Chand PW 3 as witnesses of the recovery Mohinder Singh was given up as won over.

I have heard Mr. H.S. Mattewal, Senior Advocate, learned counsel for the petitioner and gone through the evidence.

Both the Courts below have not repelled the argument that Mohinder Singh was known to police earlier as he had appeared a PW in some cases, but as he has not been examined this that he is a stock witness is not of much importance.

The learned counsel for the petitioner has challenged the prosecution version mainly on the ground that the petitioner had appeared as a PW against S.I. Sohan Singh in a case under Section 5 (2) of the Prevention of Corruption Act. S.I. Sohan Singh was posted at Kathu Nangal, District Amritsar. On the date of the alleged occurrence, the petitioner had gone to the Police Station, Batala, to know the cause of arrest of Shangara Singh''s soninlaws Paramjit Singh in his capacity as a Sarpanch. S.I. Sohan Singh, who was posted as S.H.O. P.S. Sadar Batala at that time got him implicated in this case by planting the recovery of opium on him. In this situation, when the petitioner had enmity with the S.H.O. of the Police Station, the subordinate police officials posted in that Police Station can always act under the direction of the senior police officer and the prosecution cannot succeed on the testimony of official witnesses alone. He has argued that the absence of any independent witness should be taken as a serious fault in the prosecution case as S.I. Sohan Singh did not want, to take any risk and he kept the evidence confined only to the official witnesses.

I have considered the argument and find some merit in the same. It is not disputed that the petitioner had appeared as a PW against S.I. Sohan Singh in a corruption case when the said S.I. Sohan Singh was posted in P.S. Kathu Nangal, District Amritsar. The petitioner also belongs to village Kathu Nangal, District Amritsar. It Is also a fact that S.T. Sohan Singh was posted as S.H.O. P.S. Sadar Batala when this alleged recovery is said to have taken place. The petitioner does not belong to a place falling within the jurisdiction of P.S. Batala, but the case pertains to P.S. Sadar Batala. The petitioner''s case is that he had gone to Batala to know cause of arrest of Shangara Singh''s soninlaw Paramjit Singh in his capacity as a Surpanch. whereas that prosecution case is that he was arrested while the police officials were on patrol duty. Had the prosecution joined some independent witness and that witness had supported the prosecution case, the plea of the petitioner could have had no weight. But in this case, the I.O. joined Mohinder Singh, who was not a stranger to the police. He has appeared in a number of cases as a PW but he too has not supported the prosecution case and so he was given up as won over. No doubt, it is a case of heavy recovery but the possibility that S.I. Sohan Singh might have planted this recovery just to seek his revenge from the petitioner who had appeared as a PW in a corruption case against him, cannot be ruled out. Otherwise when the petitioner does not belong to P.S. Batala, he is not expected to be roaming there on a cycle carrying 25 Kgs. of opium in a gunny bag. The plea taken by the accused that the opium had been planted on him by S.I. Sohan Singh may be true or may not be true. But the prosecution evidence consisting of only official witnesses,. when seen in the light of the animosity S.I. Sohan Singh had with the petitioner, does not inspire confidence.

In the circumstances of the case as a matter of caution, I give benefit of doubt to the petitioner and acquit him of the charge.

This revision is accepted and the petitioner is acquitted of the charge. The conviction and sentence passed against him are set aside