Jagmohan Singh vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

The petitioneraccused was convicted under section 61(1)(a) of the Punjab Excise Act for having in his possession 3 KGs. of charas on April 5, 1985, at about 4.30 P.M. He has been held guilty for the said offence and was sentenced to undergo rigorous imprisonment for one year with a fine of Rs. 1,000/ in default to further undergo rigorous imprisonment for one year, which was modified in appeal by the Additional Sessions Judge and jail sentence was reduced to nine months.

Skeletal facts are that on April 5, 1985, accusedpetitioner alighted from a bus at Halwara and started moving towards the road in suspicious circumstances. ASI Piara Singh accompanied by other police officials on suspicion apprehended the accused, took his search and found that he was carrying 3 KGs. of Charas in a cotton bag, search and recovery was made, sample was drawn, contraband was sealed, ruqa Exhibit PB was sent, thereupon FIR Exhibit PB/1 was recorded, case property was deposited in Police Malkhana and later on sample was sent to the Chemical Examiner for analysis, who vide his report Exhibit PE confirmed that the sample contained Charas. On these facts accusedpetitioner was prosecuted for the said offence. Prosecution examined ASI Piara Singh PW1 and HC Jagdev Singh PW2. It also tendered affidavits Exhibits PF and PG and the report of the Chemical Examiner Exhibit PE in evidence.

Petitioneraccused denied the guilt and pleaded that because of personal animosity he has been prosecuted at the instance of Gurdial Singh, SubInspector.

The trial Court, finding the statements of the prosecution witnesses wholly credible and reliable, held the accused guilty of the said offence and sentenced him, as stated above. The appellate Court affirmed his conviction but modified the sentence.

Petitioner''s learned counsel raised only three contentions, namely, that no independence witness was joined at the time of investigation, that sample was sent after 18 days for analysis and the seals on the sample were found broken when it was produced in the court, and there are major discrepancies in the statements of both the prosecution witnesses; therefore, the Courts below should not have relied on their testimony.

Respondent''s learned counsel relying on Ram Sarup and another v. State of Haryana, 1993(2) R.C.R. 114 , contended that no fault can be found with the lower Courts judgments. Piara Singh ASI made an attempt to join independent witness but nobody agreed to join. It was a case of chance recovery. When seeing the police party the accused moved in suspicious circumstances, he was apprehended and caught. There is hardly any ground to set aside the concurrent findings of both the Courts below. Even if the seal on the sample was found broken when it was produced in the Court, it is not going to help the accused. Admittedly, the sample was sent to the Chemical Examiner on April 23, 1985, but on account of this delay only benefit of doubt cannot be given to the accused. The seal was found infact by the Chemical Examiner. Since the prosecution witnesses were examined after a lapse of many months, therefore, minor discrepancies are bound to occur in their statements but they do not amount to contradictions. Therefore, the Courts below have rightly held that the statements of these witnesses are wholly reliable.

The same contentions were raised before the appellate Court. ASI Piara Singh PW1 has deposed on oath that he made an effort to join independent witnesses, but none agreed to join. This is a common feature of our society that when police apprehends any such criminal, members of public do not join such proceedings, may be apprehending some foul play at the hands of such miscreants. But the fact remains that hardly few persons are bold enough to join such investigation. Therefore, on this count alone no adverse inference can be drawn against the prosecution witnesses. This fact only puts the Court on guard to scrutinise the statements of the official witnesses very minutely to arrive at a conclusion whether their statements are credible, reliable and inspire confidence to base conviction. Both the Courts below have scanned the statements of ASI Piara Singh PW1 and HC Jagdev Singh PW2 and found that they are reliable witnesses.

No doubt, certain discrepancies were pointed out by the petitioner''s learned counsel before the appellate Court, but the appellate Court has rightly repelled the contention on the ground that since the witnesses were examined after lapse of many months, their memory was bound to fail on these minor points. No major contradictions were pointed out before me at the time of arguments. Since the statements of ASI Piara Singh PW1 and HC Jagdev Singh PW2 are reliable, the accusedpetitioner is not entitled to get benefit of doubt.

Admittedly, the accusedpetitioner was apprehended on April 5, 1985. The sample was sent for analysis on April 23, 1985. Link evidence is produced by the prosecution. From the affidavits of Moharrar Head Constable and the Constable it is evident that till the sample was sent to the Chemical Examiner for analysis, the seals on the sample were intact and nobody tampered with the sample. Even the Chemical Examiner found that the seals on the sample were intact and agreed with the sample seal sent along with the docket. No doubt, sample should have been sent within a reasonable time for analysis, but considering facts of the case even the delay of 18 days is not material because there is positive evidence on record that during this period the sample was not tampered with by any body. The seals were found intact not only by the MHC and the Constable but also by the Chemical Examiner.

Finding no merit in the revision, it is hereby dismissed.