Harbhajan Singh vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

Accusedpetitioner has filed this revision against the dismissal of his appeal by the Additional Sessions Judge, Ludhiana, affirming his conviction and sentence awarded by the trial Magistrate for an offence under Section 9 of the Opium Act.

To put pithily, the prosecution case was that on the morning of October 30, 1983, screening of Engine Shed area was planned by the local police. Inspector Amrik Singh S.H.O. Police Station Division No. 5, Ludhiana, accompanied by Rakesh Kumar, Manjit Singh and Paramjit Singh, being one of the parties in this operation, proceeded towards Mohalla Engine Shed. At about 7.30 A.M. when they reached near the park, they found accused coming from opposite direction with a tin container on his head. On suspicion he was apprehended and on search being taken, he was found carrying 15 Kgs. of opium. Accused was arrested. Opium was duly seized from him. Sample was drawn therefrom. Sample as well as the reminder of the contraband were duly sealed. After completing the usual investigation, the case property was deposited with Moharrar Head Constable in the Malkhana of the Police station. On 29.11.1983 the sample was brought by Constable Ravinder Singh to the Chemical Examiner, who, on analysis, found that it contained morphine to the extent of 6.61 per cent.

Accused denied the guilt and took the patent plea of false implication.

During trial Inspector Amrik Singh PW2, Constable Manjit Singh PW1 and MHC Gurnam Singh PW3 were examined. Report of the Chemical Examiner Exhibit PD and affidavit of Constable Ravinder Singh Exhibit PE were tendered in evidence.

The trial Magistrate found the evidence of the prosecution witnesses wholly reliable and thus the accusedpetitioner was held guilty of the said offence and was convicted to undergo rigorous imprisonment for 21/2 years along with a fine of Rs. 2000/ and in default of payment of fine, to undergo further rigorous imprisonment for six months. Accused preferred appeal before the Additional Sessions Judge, Ludhiana, which was also dismissed on 8.6.1987.

The petitioner''s learned counsel valiantly argued that in this case no independent witness was joined at the time of alleged search and seizure. Therefore, the testimony of Inspector Amrik Singh PW2 and Constable Manjit Singh should not have relied on by the Courts below. They being police officials were highly interested in prosecution and, therefore, in the absence of any corroborative evidence, the Courts should have given benefit of doubt to the accused. In support of this contention he has relied on Faqir Chand v. The State of Punjab, 1978 PLR 529 and Khuba Ram alias Khuba v. State of Haryana, 1995(3) All India Criminal LR 492.

Petitioner''s learned counsel also submitted that Manjit Singh PW1 was not present at the time when the alleged search was made and opium was seized, as there are cuttings in Exhibits PA and PB in the constabulary number of Paramjit Singh and Manjit Singh, which indicates that these two constables were not accompanying Inspector Amrik Singh when he was on the spot. Therefore, according to him, the statements of these two witnesses are not wholly reliable.

His next contention is that the prosecution has failed to prove that after seizure till the sample was analysed by the Chemical Examiner, the sample was kept intact. Prosecution has failed to examine MHC Gurmail Singh, who was incharge of the Malkhana when this contraband was deposited therein. In this connection, he also contended that the affidavit of Constable Ravinder Singh Exhibit PE is not in accordance with law as its verification clause is defective and it is not attested by the Magistrate as per rules. In support of this contention he has relied on State of Punjab v. Partap Singh, 1978 CLR 83 and Shaukat Ali v. State of Haryana, 1996 Crl. Law Journal 3685.

His last contention is that the accused is facing this ordeal since 1983. He has already suffered imprisonment for six months. Hence benefit of probation be granted to him.

The learned Assistant AdvocateGeneral, Punjab, supported the findings recorded by the Courts below and submitted that considering the large quantity of opium recovered from the possession of the accused, the lower Court has already taken a lenient view while awarding only 21/2 years'' rigorous imprisonment to him. Therefore, he is not entitled to avail the benefit of probation.

The evidence recorded by the lower Court and the affidavit of Constable Ravinder Kumar were read over to me during arguments. No doubt, in this case no independent witness was joined by Inspector Amrik Singh while making search and seizing the contraband from the possession of the accused, but on this count alone the sworn testimony of Inspector Amrik Singh PW2 and Constable Manjit Singh PW1 cannot be discarded as wholly unreliable and untrustworthy. By now it is well settled that in such cases if no independent witnesses are joined, at the time of search and seizure and conduct of the Investigating Officer is to be scanned minutely to see whether independent witnesses were available or he made any effort to join an independent witness or there was no occasion/opportunity to join any independent witness. If no witness was available; there was no opportunity for the Investigating Officer to join any independent witness, then simply on the basis of nonjoining of independent witnesses the sworn testimony of police officials cannot be discarded on that ground alone unless there is some infirmity in their statements or they suffer from any material contradiction.

In this case the accused was arrested at 7.30 a.m. on October 30, 1983. It has come on record that there was no independent witness available at that time. Suddenly when the accused came near the park, on suspicion he was apprehended and on search being taken, it was found that he was carrying 15 kgs of opium on his head. The prosecution witnesses have withstood the gruelling crossexamination. No contradiction worth the name could be pointed out in the statements of both these witnesses. There is no suggestion in the crossexamination of these witnesses that independent witnesses were available but they declined to join anybody. There is no suggestion even that they have any rancour against the accused.

So far as Exhibits PA and PB are concerned, that is only with regard to the constabulary number of Paramjit Singh and Manjit Singh. Manjit Singh was examined as PW1. He has mentioned his correct constabulary number, which is also recorded on Exhibit PA in his own hand. His constabulary number is also correctly recorded in the first information report. Wrong numbers seem to have been written on the aforementioned exhibits by mistake, which was rectified by the Investigating Officer. Hence on that ground alone, it cannot be said that Manjit Singh PW1 was not accompanying Inspector Amrik Singh at the time of this search and seizure and he has been implanted later on.

In Faqir Chand''s case as well as in Khuba Ram''s case (supra) it is observed that the case could have been quite different if no independent witness was available at all to the police. They had arrested the accused on suspicion. But the conduct of the police officials in not joining with them independent witnesses who were available at the time of alleged recovery renders the prosecution story highly doubtful and on that count the accused is entitled to acquittal. This is not the case here.

So far as the attestation of the affidavit of Ravinder Singh Exhibit PE is concerned, a bare look at the affidavit reveals that APP identified the deponent Ravinder Singh and Addl. Chief Judicial Magistrate verified it in accordance with the rules framed by the Punjab and Haryana High Court. Partap Singh''s case (supra) is totally distinguishable on facts. From a plain perusal of this affidavit it is also evident that Constable Ravinder Singh has verified the facts stated therein as true on the basis of his knowledge. In this affidavit there is no averment of any fact which he was required to verify on the basis of his belief. When sample was handed over to him by MHC Gurmail Singh, when he took it to ETO Office for getting the docket prepared and when he took it to the Chemical Examiner for handing it over to him for analysis, only these facts he has stated in his affidavit, which he was required to verify on the basis of his knowledge. Therefore, even Shaukat Ali''s case (supra) does not help the petitioner.

Nonexamination of HC Gurmail Singh is also not helpful to the accused. From the lower Court''s judgment it is evident that during trial prosecution made an attempt to examine him but this Head Constable was absconding. Therefore, in his place they examined another Head Constable Gurnam singh, who produced the register maintained in the police Malkhana, wherein relevant entries were made in the hand of HC Gurmail Singh. Hence the lower Court has rightly observed that under these circumstances no adverse inference can be drawn against the prosecution. Constable Ravinder Singh has stated in his affidavit that the sample was intact when he took it to the Chemical Examiner. Even in the report of the Chemical Examiner Exhibit PD it is mentioned that the seals of the exhibit were found intact on arrival and till the time its analysis was started and it agreed with the specimen sample seal sent along with the docket. Thus, the prosecution proved beyond doubt that after the recovery till the sample was analysed by the Chemical Examiner, the seal on the sample was intact and sample was not tampered with by any person. Hence all these contentions are devoid of any substance.

So far as the benefit of probation is concerned, the accused was having in his possession 15 kgs of opium. Considering the huge quantity of the contraband, in my considered view, the sentence is proper and adequate. No interference is called for.

Resultantly, the revision, being meritless, is hereby dismissed.