Harjeet Singh vs State of Punjab

Harmohinder Kaur Sandhu, J.

On 19.(sic).1985, Assistant Sub Inspector Manmohan Singh of Police Station, Division No. 4, Ludhiana, was on patrol duty alongwith Head Constable Sikander Singh, Jagtar Singh, Kuldip Singh and other police officials. The police party was going in a Government vehicle to wards chowk Old Sabji Mandi, Ludhiana after joining Om Parkash PW and when it was at a short distance from Chand Cinema Ludhiana. Harjeet Singh was apprehended on suspicion. He was carrying an attache case. His personal search led to the recovery of 10 kilograms 200 grams of Opium from the attache case. From the recovered substance a sample of 50 grams was separated and was sealed in a tin box. The remaining opium was also seized and seizure memo was prepared. The sample was got chemically examined and after completion of the investigation challan was presented in Court. Harjeet Singh was tried for an offence under Section 9 of the Opium Act by Shri Amarjit Singh Katari, Judicial Magistrate, Ist Class, Ludhiana, who vide his judgment dated 5.4.1991 held him guilty and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 5000/. In default of payment of fine further imprisonment for six months was imposed. Against this judgment recording his conviction, Harjeet Singh filed an appeal which was dismissed by Shri V.B. Handa, Additional Sessions Judge, Ludhiana on 6.11.1991. By way of this revision petition Harjeet Singh has assailed the judgment of the trial Court recording his conviction as well as judgment of the Appellate Court maintaining the same.

I have heard Mr. D.S. Walia, Advocate, the learned counsel for the petitioner and Mr. A.S. Jatana, Assistant Advocate General, Punjab, for the State and have perused the record.

It was submitted by the learned counsel for the petitioner that conviction of the petitioner rested on the testimony of official witnesses alone. Recovery was alleged to have been effected at a busy place during day time but no independent witness was associated from the locality. The only nonofficial witness alleged to be accompanying the police party was not an independent witness and in spite of the fact that he was interested in the prosecution, he was not examined. The testimony of official witnesses was also not credible as it was inconsistent and discrepant on each and every fact elicited in the crossexamination of the witnesses. There was absolutely no corroboration of the testimony of official witnesses who were interested in the success of the case so much that even the link evidence produced on record was not admissible in evidence as the affidavits of the formal witnesses were not properly verified and were defective.

Learned Assistant Advocate General contended that quantity of the recovered article was quite substantial and it was not easy to foist such a heavy quantity of opium. The nonofficial witness was given up as he was colluding with the petitioner and testimony of official witnesses could not be discarded on account of their official status.

In the present case the prosecution examined Assistant Sub Inspector Manmohan Singh and Head Constable Jagtar Singh to prove the recovery. Om Parkash PW was given up as having been won over by the petitioner. The petitioner is a resident of village Hassan while the witness was a resident of Jawahar Nagar Camp, Ludhiana. The contention of the defence was that this witness was running a teastall just opposite the office of AntiGuna staff, Ludhiana and was well acquainted with the investigating officer who had been previously too associating him as a prosecution witness in various cases. There is nothing on record to suggest as to how the petitioner had an occasion to win over a person who was a complete stranger. Assistant Sub Inspector Manmohan Singh in his crossexamination deposed that he did not know Om Parkash earlier but when he was asked whether he ever joined him previously in any case, he could not give a definite reply and stated that he was unable to recollect. This witness was alleged to have been joined at a distance of 7 kilometers from his residence and it is not made out as to how he happened to be there. The witnesses were not consistent about the place from where the witness was joined. In these circumstances there is no plausible explanation for nonexamination of the witness and the only inference that can be drawn is that he was not present at the time of alleged recovery. He was simply introduced on account of his association with the investigating officer.

As regards the testimony of PW 1 Assistant Sub Inspector Manmohan Singh and PW 2 Head constable Jagtar Singh I find that the same did not inspire confidence in view of the various discrepancies which were enumerated by the Appellate Court in its judgment. They made contradictory statements with respect of almost all the facts regarding which they were cross examined. When the prosecution case rests upon the sole testimony of official witnesses and independent witness, though associated by the police, is not examined in court, without plausible explanation for his non examination, then even minor discrepancies and contradictions in statements of official witnesses assume significance and render the prosecution case doubtful. Hoshiar Singh v. The State of Haryana, 1990(1) CLR 153 is an authority on this point.

A perusal of the affidavit Ex. PE of Constable Avtar Singh shows that it had not been properly verified. He has not deposed as which part of paragraph of the affidavit was true and correct on the basis of personal knowledge and which particular para was true and correct as per information received. When the verification is not proper, the affidavit is defective and cannot be legally read in evidence and in absence of such affidavit the link evidence produced by the prosecution remains incomplete. As the link evidence is incomplete so it cannot be said that the recovered article constituted opium. For these reasons the case of the prosecution cannot be said to have been proved beyond reasonable doubt and conviction of the petitioner cannot be maintained.

As a result I accept this revision petition, set aside the impugned Judgments and acquit the petitioner of the charge. Fine, if deposited, be refunded to him.