Gaja Nand vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Gaja Nand (hereinafter described as the Appellant) directed against the judgment and order of sentence passed by learned Additional Sessions Judge, Sirsa dated 19.2.1994. By virtue of the impugned judgment, the learned trial Court held the appellant guilty of the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter described as the ''Act''). The appellant was subsequently sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. One lac. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for two years.

The relevant facts giving rise to the present appeal are that on 25.10.1991, Sub Inspector Ran Singh was posted as Incharge, C.I.A. Ellenabad. The appellant was detained suspecting that he was in possession of some Narcotic Substance in the bag in the area of Talwara Khurd. Head Constables Jagdish Singh and Suraj Mal were present. The appellant was informed vide a written notice, Ex. PA that if he chooses, his person can be searched in presence of a Magistrate or a Senior Police Officer. The appellant expressed his full faith in Sub Inspector Ran Singh and permitted him to effect the search.

The bag of the appellant was searched. It was found to be containing a plastic tin. On checking the tin was found to contain 11/2 kgs. of opium wrapped in plastic paper. 10 grams was taken as a sample. The sample and rest of the opium were converted into 2 separate parcels and sealed with the sale of ''RS''. The seal after use was handed over to Head Constable Jagdish Singh. Both the packets were taken into possession vide a recovery memo. Ruqa was sent through Constable Rajinder Singh, on the basis of which formal F.I.R. was recorded.

The appellant and the recovered articles were produced before the Officer Incharge of Police Station, Ellenabad, who verified the facts and directed the case property to be deposited in the Malkhana. Satbir Singh was the Malkhana Moharrir. He took the case property in the Malkhana. The same was sent to F.S.L. Madhuban on 6.11.1991 through Constable Jagdish Raj. On receipt of the report that contents were opium, report under Section 173 Code of Criminal Procedure was submitted.

The learned trial Court framed a charge against the appellant for offence punishable under Section 18 of the Act. The appellant pleaded not guilty and claimed trial. The prosecution had examined 6 witnesses in all. The appellant when examined under Section 313, Code of Criminal Procedure denied the recovery of opium from his person. His precise defence was that he had a Maruti Van. Sub Inspector Ran Singh demanded the same. When he refused to oblige, he was falsely implicated in this case. No defence witness was examined.

Learned trial Court on appraisal of the evidence and other material on record concluded that it is established beyond all reasonable doubt to the effect that recovery of opium was effected from the person of the appellant. The defence version to the contrary was rejected. With this basic findings, the impugned judgment and order of sentence were passed.

Pertaining to the alleged recovery of opium the prosecution examined two witnesses. Jagdish Singh, P.W. 1 made a statement that while he was with SubInspector Ran Singh, the appellant was apprehended on suspicion. He was served with a notice that if he likes, he can be taken before a Gazetted Officer for search. The appellant declined the offer and permitted the search by Sub Inspector Ran Singh. A plastic bag was found containing a plastic tin which had 11/2 kgs. of opium. 10 gms. was taken as a sample. They were converted into two parcels and sealed. During his crossexamination the witness added that village Talwar Khurd is 3/4 kms. from the place of recovery. The weights and scale were brought by Constable Rajinder Singh. When enquired the witness answered that no independent witness was available for joining in the investigation. Though Rajinder Singh had been sent to bring the witnesses from the village, he explained that no person was working in the adjoining fields.

With respect to the recovery, the Sub Inspector Ran Singh P.W. 2 made a similar statement. During his crossexamination, the witness answered that the weights and scale were brought by Constable Rajinder Singh from the village. The version was that no witness was called from the village through Constable Rajinder Singh. Nobody from the general public happened to pass from the place of recovery during the investigation. He did not even notice anybody working in the fields.

It had been argued that no public witness had been joined in the raiding party. The often quoted statement can again be repeated that it is not a matter of law but of prudence that Courts insist on joining of independent witness. There is no hard and fast rule in this regard. Facts of each case have to be weighed and thereafter it has to be concluded as to if the official witnesses have to be believed or not. In a given set of circumstances, conviction even on testimony of official witnesses can be held good.

The position in the present case can be reanalysed. The recovery has been effected in a broad daylight namely at about 4.30 p.m. Therefore, it is not that hour of the day that public witness would not be available. The same was so effected on a main road. It is, therefore, difficult to believe that during all this period, there was no public witness that was available. Furthermore the Constable had been sent to the village to fetch the scale and weights. Village was about 34 kms. from the place of recovery. It was not difficult to ask for public witnesses from the village. To state that none was available, is difficult to believe because no such names are even forthcoming as to who might have refused to join the raiding party. In addition to that the fields were near the said place. In the month of October, there would be some persons working, but prosecution wants the Court to believe that no witness was available. The version so put forward cannot be believed and, therefore, in the peculiar facts, it is difficult to pin faith in the testimony of official witnesses, so as to hold that it is established beyond all reasonable doubts that opium was recovered from the appellant.

For these reasons, the appellant must be held to be entitled to the benefit of doubt. Accordingly, the appeal is accepted and the judgment and order of sentence passed by the learned trial Court are set aside. The appellant may be set at liberty if not required in any other case.