Jabra Singh vs State of Punjab

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed by the learned ASJ Sangrur in Sessions Case No. 7 dated 17.1.1989 for the offence u/s 18 of the NDPS Act (hereinafter referred to as the Act).

According to the case of the prosecution 6 kgs of opium was recovered from the possession of the accused on 15.8.88 at about 415 pm within the revenue limits of village Gandasinghwala in the presence of DSP Swaran Singh, ASI Gurbachan Singh and Mal Singh and in pursuance of the statement made by the accused he is guilty of the offence u/s 18 of the Act. After the case was committed charge u/s 18 of the Act was framed against the accused to which he pleaded not guilty. In order to prove the guilt of the accused the prosecution examined 2 witnesses. On a consideration of the evidence on record the learned ASJ convicted the accused for the offence u/s 18 of the Act and sentenced him to undergo RI for a period of 10 years and a fine of Rs. 1 lac. Hence this appeal.

PW1 deposed that on 15.8.88 when he was posted as DSP Malerkotla, he was checking nakas while patrolling. When he reached the chowk he met SI and ASI and other police officials and thereafter all of them reached near the train in the area of village. Then one informant met ASI who informed him that the accused Jabra Singh was having opium in his house and if a raid is conducted the opium could be recovered. Then they went towards village Gandasinghwala. When they reached the country wine shop one Mohinder Singh was joined in the raiding party. When the police conducted the raid the accused was found in the courtyard of his house. On interrogation by SI the accused disclosed that he had kept the opium in a turi in his house. His statement was recorded and thereafter opium was recovered in accordance with the disclosure statement and it was found wrapped in glazed paper placed in the gunny bag and its weight was 6 kgs. PW2 is the SI who also deposed to the same facts as stated by PW 1. The accused in his statement u/s 313 Cr.P.C. stated that the case is a false case and he was taken by the police in the presence of the members of the Panchayat to the police station on the pretext that he was being summoned by the SHO. Thereafter the case was foisted against him. DW3 who has been examined by the accused stated that the accused was taken by the HC and two constables to the police station. DW4 also deposed that the accused was taken by the police. DW5 also stated the same thing.

The case of the prosecution as can be seen from the evidence of PWs1 and 2 is that the recovery of opium was effected on the basis of the disclosure statement of the accused. The said statement is not admissible in evidence. Therefore the evidence of PWs1 and 2 to the effect that the accused stated before them that he concealed the opium in his house is also no evidence. There is also no evidence to show that the premises from where the opium was recovered belonged to the accused. Further the evidence of DWs3 to 5 clearly shows that the accused was taken to the police station by the police constables. Though PWs1 and 2 stated that independent witnesses were associated in the search he has not been examined by the prosecution. There is no evidence connecting the accused with the recovery of opium even if it is believed. Unless the prosecution establishes that the premises were actually in the possession of the accused the conviction cannot be based. As already observed the statements said to have been made by the accused to PWs1 and 2 is not admissible under the Indian Evidence Act as it amounts to confession. U/s 27 of the Indian Evidence Act the recovery of opium in persuance of the statement of the accused can only be proved but it cannot be used to show that the accused himself concealed and kept the opinion at the place where it was found. I am therefore of the opium that the accused is entitled to be acquitted of the charge framed against him.

I, accordingly, allow the appeal and set aside the conviction and sentence imposed on the accused by the learned ASJ Sangrur and the accused is acquitted of the charge framed against him. The bail bonds shall stand cancelled.