Jarnail Singh vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Jarnail Singh (hereinafter described as "appellant") directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Ferozepur dated 19.9.1994. 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 (for short the "Act"). By the subsequent order of sentence, the appellant was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. one lakh. In default of payment of fine, he was to further undergo rigorous imprisonment for three years.

The relevant facts are that on 12.10.1992, ASI Iqbal Singh in the company of other police officials was going from the side of village Kamalwala to Mammu Khera. They were in a private jeep. When the police party reached near the bridge of the canal minor situated in the area of village Mammu Khera, the appellant was seen coming from the side of village of Mammu Khera. On seeing the police party, the appellant tried to slip away. On suspicion he was stopped.

ASI Iqbal Singh informed the appellant that he was suspected to be in possession of some intoxicants and that if he so likes arrangement for search could be made in the presence of a gazetted officer of the police or a magistrate. The appellant declined the offer and agreed to be searched by ASI Iqbal Singh. A consent memo (exhibit PB) was prepared. It was found that appellant had tied around his waist a glazed paper which contained opium. The contents were found to be one kilogram and 100 grams. A sample of 100 grams was taken. The sample and the rest of the opium were converted into separate parcels and sealed with the seal of I.S. Both the packets were taken into possession vide recovery memo.

Ruka was sent to the Police Station on basis of which formal FIR was prepared. On return to the Police Station, ASI Iqbal Singh produced the appellant and the case property before Inspector, the officer in charge of the Police Station, he also fixed the seal of IS on the same. He took the case property into his possession. It was deposited in the Malkhana. Subsequently, the representative sample was sent for chemical analysis. On receipt of the report that it was opium, report under section 173 Cr.P.C. was submitted.

The learned trial Court framed a charge against the appellant for the offence punishable under section 18 of the Act. The appellant pleaded not guilty. When the statement of the appellant was recorded and the incriminating evidence was put to him in the form of different questions, he pleaded his innocence and claimed that it is a case of false implication. In defence, the appellant examined one Avtar Singh (DW. 1). Avtar Singh deposed that police had never come to his place on the kutchha path. The appellant was never apprehended near this place.

The learned trial Court on perusal of the evidence held that it has been established that opium alleged was recovered from the person of the appellant. Statutory provisions were complied with. He was held guilty of the offence punishable under section 18 of the Act. The order of sentence followed.

Both Head Constable Avtar Singh PW/2) and ASI Iqbal Singh (PW/3) deposed that the alleged opium was recovered from the person of the appellant. They admitted that recovery was effected near a thoroughfare. It is the case of the prosecution that no public witness was available and thus was not joined.

In the peculiar facts of the case, the said explanation is not at all convincing which can be accepted. When the explanation for nonjoinder of public witnesses is not reasonable. It becomes difficult to pin faith and act on these testimonies of the official witnesses. It is in evidence that a person was sent to fetch the scales and weights. Even that person who has supplied the scales or weights was not asked to join as a witness. Otherwise, it is difficult to believe that for such a long time nobody would be available on that thoroughfare.

Coupled with that is the contention raised that sample seal was not deposited in the Malkhana. It is urged that chances of tampering of the property cannot be ruled out. Iqbal Singh, officer in charge of the Police Station (PW/1) made a statement that according to the entry in register XIX, the case property was deposited by ASI Iqbal Singh. There was no mention that sample seal was deposited in the Malkhana. Reliance was placed by the learned counsel on the decision of this Court in case of Paramjit v. State of Punjab, 1996(1) RCR 267 .

The said question in the present case becomes of an academic interest because the evidence on the record reveals that no care has been taken to ensure that chances of the said property being tampered with are ruled out. Avtar Singh, Head Constable appeared as PW2 and made a statement about the recovery of contraband and taking of the sample. He stated that the sample and rest of the opium were converted into two parcels and sealed with the seal of ''IS''. There was no mention as to whom the seal was given after use. In a similar fashion, ASI Iqbal Singh PW3 was conspicuously silent as to whom the seal was given after use to ensure that there is no tampering with the property. In the present case the evidence is totally lacking as to whom the seal had been given and whether any care had been taken in this regard to ensure that there is no scope for interfering or tampering with the said property. That being so, the chances of opium being tampered with could not be ruled out. When such care has not been taken and there is no public witness that had been joined, it must be held that case of the prosecution was not free from doubt. Appellant is entitled to the benefit of doubt.

For these reasons, the appeal is accepted and the judgment and order of sentence is set aside. The appellant be released if not wanted in any other case.