Kewal Singh vs State of Punjab

A.S. Bains, J. (Oral)

The petitioner was convicted for the offence under Section 9 of the Optum Act and sentenced to two years'' R.I. and a fine of Rs. 2000/, in default of payment of fine six months R.I. by the learned Judicial Magistrate Ist Class, Jalandhar. On appeal, his conviction and sentence was upheld by the Addition Sessions Judge, Jalandhar. Hence this revision.

On 26th June, 1979 on receipt of a secret information Dy. S.P. Waryam Singh directed S.I. Pritam Singh to conduct raid at the house of Kewal Singh, petitioner. A case was also registered at Police Station Nurmahal on the basis of the Ruqa sent to the SHO of the Police Station against the petitioner and a raiding party was organised. They went to the village of the petitioner in a jeep and house of the petitioner was searched but nothing incriminating was found on the search of the house of the petitioner. It is further alleged that on interrogation the petitioner disclosed that he had taken on lease 11 Killas of land from one Udho Ram in village Poadhra and had also constructed a Kotha. In that Kotha he had kept poppyhusk. He handed over the key of the said Kotha to the police. Thereafter the police party went to Kotha, opened the door and recovered 43 gunny bags containing 42 Killos of crushed poppyhusk each. Samples of 250 grams each were taken out of all the 43 bags and the same were sent to the Assistant Chemical Examiner for analysis which were found to be poppy husk vide report Exhibit P.F.

At the trial the petitioner denied the prosecution allegations and also produced in evidence D.W. 1 Malkiat Singh, Patwari of village Poadhra, D.W. 2 Nazar Singh of village Poadhra, DW 3 Udho Ram of village Poadhra, DW 4 Kundan Singh, Sarpanch of village Sangowal and DW 5 Swaran Dass, Patwari of village Sangowal.

The prosecution case rests on the testimony of S.I. Pritam Singh, PW 2 and Mohinder Singh Head Constable PW 1. They have supported the prosecution version as given in the earlier part of the judgment but their testimony does not inspire confidence. According to the prosecution version the petitioner had taken on lease the land of Udho Ram in village Poadhra and had kept poppy husk in the Kotha and the key was delivered to the raiding party but according to Malkiat Singh, Patwari, D.W. 1 of village Poadhra, Udho Ram did not own any land in village Paodhra. According to D.W. 5 Swaran Dass. Patwari also Udho Ram did not own any land in village Sangowal but the petitioner is occupying some central Government land. The whole story of the prosecution falls to the grounds as the said Udho Ram did not own any land either in village Poadhra or in village Sangowal. Thus the question of recovery of poppy husk from the Kotha constructed on the land of Udho Ram does not arise at all. Moreover, it is in evidence of Sarpanch Kundan Singh D.W. 4 and also Nazar Singh, D.W.2 that no key was delivered by the petitioner to the police and nothing incriminating was recovered from the Kotha as alleged by the police. The evidence of Kundan Singh Sarpanch and Nazar Singh DWs has been discarded on the ground by the courts below that they belonged to the village of the petitioner. This can hardly be a ground for discarding the evidence of such persons. Kundan Singh is an elected Sarpanch of the village. Not only he holds responsible office but also enjoys the confidence of the majority of the villagers. Besides the executive function, he as a Sarpanch is to discharge judicial functions also. There is nothing on the record to show that he is in any way related to the petitioner. Usually no Sarpanch or Panch comes forward to depose falsely unless it is shown that they are interested in an accused person or they are inimical towards the police. There is nothing on the record to show that Kundan Singh or Nazar Singh was related to the petitioner except that they are his covillagers. Everybody in the society is interested in unearthing the crime. It is only when the police tries to falsely implicate the persons that a citizen does not come forward to support the police version. In the present case when the police went to the house of the petitioner for search they did not join two respectables of the locality before entering into the house of the petitioner which requirement of law they should have complied with as enjoined upon them by Section 100(4) to (8) of the Criminal Procedure regarding search. Even at the time of opening of the door of the Kotha as alleged by them nobody from village Poadhra or Sangowal was joined to conduct the search of the Kotha. Thus in these circumstances it is very difficult to rely on the testimony of the police officials.

Defence version of the petitioner seems to be probable that he has been falsely implicated at the instance of Dy S.P. Waryam Singh who was interested in getting the government land vacated by the petitioner and getting the same allotted in the name of his relations. It is not uncommon in this part of the country for the police officers to do such things. D.W. 5 Swaran Dass Patwari Sangowal has testified to the fact that the petitioner was in occupation of Central Government land in Sangowal. Courts below have to give weight to the defence evidence as well. It is only after appraisal of the prosecution and defence version that the Courts have to arrive at correct conclusion, but in this case, as observed earlier, the defence version has been totally discarded and undue weight has been given to the testimony of two police officials.

For the reasons recorded it is not safe to maintain the conviction of the petitioner. Accordingly he is given benefit of doubt and acquitted.

Consequently the revision petition is allowed and conviction and sentence of the petitioner recorded by the Courts below are set aside. The petitioner is on bail. His bail bond shall stand discharged. Fine, If already paid shall be refunded to the petitioner.