Jit Lal vs State of Haryana

K.S. Kumaran, J.

AppellantJit Lal son of Des Raj who stood trial before the Additional Sessions Judge, Karnal, in Misc. Sessions Case No. 84/2 of 1986 under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was accordingly convicted and sentenced to undergo Rigorous Imprisonment for ten years, to pay a fine of Rs. 1 Lakh (One Lakh) and in default to further undergo Rigorous Imprisonment for five years. The case of the prosecution is as follows

On 30.11.1985 the Assistant Sub Inspectors Ranbir Singh and Dharam Singh along with police party were present in front of K.R. Cinema on Meerut Road, Karnal, while on patrol duty. The appeflantJit Lai who was coming from the side of the Truck Union, on seeing the police party tried to turn back. On suspicion he was apprehended and on checking the bag which he was carrying, he was found to carry 1 Kg. of opium without any licence. After taking the sample, the sample and the reminder were separately sealed, and both the sample and the reminder were taken into possession under recovery memo Ex.PB. On the ruka Ex.PC sent to the Police Station, the formal F.I.R. Ex.PC/1 was registered. The sample parcel was sent for chemical analysis and the report regarding the same is Ex.PE.

The prosecution examined Assistant Sub Inspectors Dhararn Singh and Ranbir Singh apart from marking the affidavits of Surat Singh (M.H.C.) and Constable Surjit Singh (Ex.PA and Ex. PA/1). When examined under Section 313 Cr.P.C. the appellant/accused denied the allegations and pleaded false implication. According to him, he was falsely implicated at the instance of Raju, who is inimically disposed towards him.

Learned Additional Sessions Judge, after trial, found the appellant/accused guilty under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985, and accordingly sentenced him as mentioned above, aggrieved against which he has filed this appeal.

The first point urged by the learned counsel for the appellant is that no independent witness was joined at the time of the alleged search and seizure of opium from the appellant. The learned counsel for the appellant contends that the recovery is alleged to have been made at a place near a Cinema Theatre; that there were also truck union and weigh bridge nearby; and that in spite of that no independent witness was joined to witness the alleged search and seizure of opium. ASI Dharam SinghPW 1 stated in his evidence that when himself and other members of the police party were present in front of K.R. Cinema Hall on the Meerut Road, the appellant came from the side of the truck union carrying a bag in his right hand, that on seeing the police party the appellant returned; that he was apprehended on suspicion, and on checking it was found that he was carrying one kg. of opium. Although it was very early in the morning (between 5 to 5.30 a.m.), there should have been somebody at least a watchman in the Cinema Theatre. PW1 admitted that truck union is half a furlong from the Cinema Theatre, but he stated that he did not know if there was a watchman on duty at the Cinema Theatre. He also stated that he did not know whether there was a weigh bridge or truck union. But, he admitted that nobody was called from the Cinema Theatre or the weigh bridge or the truck union. ASI Ranbir Singh (P.W. 2) stated that they were standing in front of the gate of the Cinema Theatre; that they saw the appellant at a distance of 20 to 25 paces; that he (P.W. 2) did not know if there is weigh bridge adjoining the Cinema Theatre and that if vehicles come to the weigh bridge day and night for weighment. He further stated that though he tried to join witnesses there was none available. But, it is evident that what he states cannot be true because he does not even know whether there is a weigh bridge nearby and whether vehicles come there day and night for weighment. If he had made bona fide attempts to secure a witness, he would have been able to secure a witness from the Cinema Theatre or the weigh bridge because, there should have been a watchman at least in those places. The opium that was allegedly recovered from the appellant was taken in two tins, one tin containing the sample and the other containing the remainder. PW. 1 stated that the tins, weights and scale were called for from a tea shop on Meerut Road. If the police could obtain them for collecting the alleged contraband then, they should have been able to get the witness for their alleged search and seizure also, which they did not do. In these circumstances, I am of the opinion that the police could have joined independent witness at the time of alleged search and seizure but they did not do so, and that raises a serious doubt in the case of the prosecution.

Another contention put forward by the learned counsel for the appellant is that the sample and remainder of opium alleged to have been recovered from the appellant were not handed over by the police party to the Station House Officer and that affects the case of the prosecution. Admittedly, this was not done, and PW 2 even admitted that even the accused was not produced before the Station House Officer. PW 2 stated that he did not know that the contraband and the accused should be produced before the officer in charge of the police station and, therefore, they did not do so. Although, this cannot be a material factor which will vitiate the case of the prosecution itself, it is a matter which can be taken into account in appreciating the evidence regarding alleged search and seizure as well as the merits of the case (Vide decision of Hon''ble Supreme Court in State of Punjab v. Balbir Singh, (1994(1) Recent CR 736). If we take into consideration this factor along with the other factor, namely, the nonjoining of any independent witness at the time of alleged search and seizure of the contraband from the appellant then, it will be clear that this certainly affects the case of the prosecution.

Another point urged by the learned counsel for the appellant is that the link evidence introduced in the form of affidavits marked as Exs. PA and PA1 is not sufficient to convict the appellant. Ex.PA is the affidavit of MHC Surat Singh wherein he has stated about the parcels of the sample opium and the remainder having been handed over to him on 30.11.1985, and about his handing over the sample to Constable Surjit Singh on 2.12.1985 for taking the same for chemical examination. He has also stated that the same was not tampered with. Ex.PA/1 is the affidavit of Constable Surjit Singh wherein he has stated that on 2.12.1995 MHC Surat Singh handed over the sample to him; that he deposited the same in the office of Chemical Examiner and that it was not tampered with. But, the learned counsel for the appellant contends that the verification in both affidavits is defective and, therefore, these affidavits cannot be relied upon for convicting the appellant. The verification portion appearing above the signature of Constable Surjit Singh is as follows :

"I Constable Surjit Singh certify that I have given my above statement in my full sense and nothing have been concealed in it."

The verification portion in the affidavit of MHC Surat Singh is as follows :

"I Surat Singh HC No. 100 certified solemnly that I have given my above statement in my full consciousness and the same is correct as per my knowledge and belief. I have nothing concealed in it."

The learned counsel for the appellant contended that the verification in these affidavits is defective inasmuch as the first affidavit does not even say that deponent was affirming it to be true, and inasmuch as in the second affidavit, the deponent had not stated as to what are the facts that are true to his knowledge and what are those that are true according to his belief. He also relied upon a decision of this Court in Joginder Singh v. State of Haryana, 1995 1 ACD 394. That was also a case where the constable had stated that the matters mentioned in the affidavit are true to the best of his knowledge and belief. In those circumstances Hon''ble Mr. Justice Sat Pal, held that from the affidavit it is clear that the deponent had not mentioned as to which part of his affidavit is based upon his personal knowledge and which part of his affidavit is based upon his belief; that such an affidavit is inadmissible in evidence and could not have been relied upon for convicting the appellant before him. In view of this decision the affidavits in the case before me also could not have been relied upon to convict the appellant. There is no proper verification of the facts mentioned in these affidavits and, therefore, in view of the defect in the affidavits I have to hold that the link evidence is missing. Consequently, the appellant could not be convicted. Therefore, taking into consideration all these aspects of the case, I find that the prosecution has failed to prove the case against the appellant beyond reasonable doubt.

In the result, the appeal is allowed. The conviction of the appellant and the sentence passed against him are set aside. The appellant is acquitted. The fine, if paid by him, be refunded to him.