Khushal Chand vs State of Haryana

B.S. Nehra, J.

This Criminal Revision is directed against the judgment dated 16.5.1991 of Shri R.N. Singal, Additional Sessions Judge, Hisar, dismissing the petitioner''s appeal against his conviction and sentence recorded by the trial court under section 9 of the Opium Act.

The facts of the case are as follows : On 11.5.1985, Assistant Sub Inspector Satyawan along with Rajpal, Raj Singh, Mehar Singh, Satpal and Miya Singh constables, was present for patrolling at the Bus Stand of village Garhi When the police party was going from link road Garhi, the petitioner was seen coming from the side of G.T. Road. He was carrying a bag on his head. On seeing the police party, he turned back. It aroused the suspicion of the police. There upon he was apprehended. The bag was found to contain 10 kilo 600 grams of opium wrapped in a polythene paper, 500 grams of opium was separated as sample and it was sealed into a parcel. The remaining opium was also sealed into a separate parcel with the seal of`SS''. The seal after use was handed over to Constable Raj Singh Intimation was sent to the Police Station, on the basis of which case was registered against the petitioner. According to the prosecution, the independent witnesses present on the Bus Stand had refused to join the investigation. After the completion of the investigation, the petitioner was sent up for trial. He was charged under section 9 of the Opium Act. He pleaded not guilty to the charge and claimed trial. The prosecution, in order to substantiate the charge against the petitioner, examined PW 1 Assistant Sub Inspector Mehar Singh, PW 2 Constable Raj Pal, PW 3 Assistant Sub Inspector Satyawan and PW4 Constable Bhim Singh. In his statement recorded under section 313 of the Code of Criminal Procedure, the petitioner denied the prosecution allegations and pleaded false implication. He alleged that he was coming from Delhi to Hissar and when the bus reached at Hansi, an unclaimed bag was found in it. It was suspected to contain a bomb. The police was called and the petitioner was falsely implicated.

Mr. T.S. Sangha, Advocate for the petitioner, and Mr. S.S. Guripuria, Assistant Advocate General, Haryana for the respondent have been heard at length and the record of case has also been carefully gone through.

The learned counsel for the petitioner has raised four points to assail the impugned judgment. His first contentions that the substance allegedly recovered from the petitioner has not been proved to be opium. His second contention is that the formal evidence tendered by the prosecution by way of affidavit is defective and, therefore, link evidence is missing. The third contention is that the prosecution has not been to pinpoint the place, date and time of occurrence. The fourth contention is that due to the failure of the prosecution to join (sic) proved the case against the petitioner beyond of a shadow of reasonable doubt and in his context be urged that the statements of the official witnesses do not deserve any evidence.

According to the report Exhibit PX of the Chemical Examiner, the sample of the contraband, which was taken out of the substance recovered from the petitioner, was analysed and it was found to contain 8.95% of morphine and on this basis, the chemical Examiner opined that the sample was opium. The contention of the learned counsel for the petitioner is that the presence of meconic acid in the sample, besides morphine was also required to be proved by the prosecution and in the absence of such an evidence, the petitioner cannot be found guilty of having committed an offence under section 9 of the Opium Act. In support of his contention, the learned counsel relied on a Division Bench judgment of this Court in Inder Singh v. The State of Punjab, 1981 Chandigarh Law Reporter 114. While considering the definition of the term opium contained in Section 3 of the Opium Act, their lordships ruled that mere presence of morphine does not render the substance opium as defined in the Section but the prosecution must establish the presence of meconic acid and the fact that the contraband was opium. It appears that the learned Additional Sessions Judge had summoned Dr. Vijender Singh, Deputy Director, Forensic Science Laboratory, Madhuban, PW 5, by way of additional evidence to determine whether the Chemical Examiner had found the existence of meconic aside besides morphine in the sample sent to him for analysis Dr. Vijender Singh had proved the work sheet Exhibit D1 on the basis of which the report of Chemical Examiner Exhibit PX had been prepared and the work sheet clearly stated about the existence of meconic acid in the sample of the contraband analysed by the Chemical Examiner. The learned Additional Sessions Judge relying on this evidence came to the conclusion that there was no doubt that what was recovered from the petitioner was opium. The learned counsel for the petitioner contended that the work sheet Exhibit D1 had not been put to the petitioner in his statement under section 313 of the Code of Criminal Procedure before the trial Court and, therefore, this document and the statement of PW 5, Dr. Vijender Singh cannot be viewed against the petitioner to hold that the substance recovered from him was in fact opium. On a careful consideration, this contention is found to be devoid of any merit. In his statement under section 313 of the Code of Criminal Procedure, the petitioner had been specifically confronted with the report of the Chemical Examiner, whereby the recovered form the petitioner was found to be opium. The mere fact that the learned Additional Sessions Judge in order to satisfy his conscience recorded additional evidence to reach this conclusion that the contraband recovered form the petitioner also contained meconic acid besides morphine cannot be taken to mean that the petitioner has in any way been or prejudiced. The learned Assistant Advocate General, Haryana, is therefore, justified in submitting that the principle laid down by this court in Inder Singh''s case (supra) has been fully established in the instant case as well and, therefore, the cannot be allowed to urge that the contraband recovered from the petitioner was not opium.

The prosecution had tendered into evidence affidavit Exhibit PY dated 1.9.87 of Moharrar Head Constable Kanwar Singh, which says that he had taken the sample of the contraband to the Chemical Examiner with seals intact for analysis. The verification underneath this affidavit has been made by the deponent on the basis of his information and knowledge. The learned counsel for the petitioner contended, that this affidavit is defective inasmuch as it did not clarify which part of the affidavit was correct on the basis of belief and which part was true on the basis of the personal knowledge. This contention appears to be well founded, for as rightly urged by the counsel for the petitioner, it is not possible to determine in this case as to which part of the affidavit of Moharrar Head Constable Head Kanwar Singh is correct on the basis of his belief and which part was true on the basis of his knowledge. A similar view was taken by this High Court in Balwinder Singh v. The State of Punjab, 1989(1) Recent Criminal Reports 643.

After the alleged recovery of the contraband from the petitioner, the intimation Exhibit PA had been sent from the spot by the Police to the Police Station at 12.45 PM on 11.5.1985 and on its basis, formal first information report Exhibit PA/1 was registered in the Police Station at 1.30 PM on 11.5.1985. Thus, according to the documentary evidence contained to in the intimation sent to the Police Station by the Police party and the first information report, the recovery had been effected from the petitioner on 12.5.1985. In order to prove this recovery, the prosecution has examined PW Raj Pal and PW 3 Assistant Sub Inspector Satyawan. According to PW 2 Raj Pal, they had started from the Police Station, on patrol duty at 10 PM and the petitioner was arrested at 12 at night. Similarly, PW 3 Assistant Sub Inspector Satyawan has also deposed that the petitioner was apprehended was at 12 mid night intervening 11/12.5.1985. In other words, if the petitioner, according to the oral evidence of the witnesses, was apprehended at midnight intervening 11/1251985, the intimation to the police was bound to have been sent after the mid night i.e. on 1251985. However, the endorsement of the Judicial Magistrate on the first information report shows that it was received by him at 2 PM on 11.5.1985, which clearly means that according to the documentary evidence, the petitioner had been allegedly arrested on 11.5.1985, the first information report has also been registered on that date. This evidence clearly contradicts the oral evidence of PW 2 Raj Pal and PW 3 Assistant Sub Inspector Satyawan as regards the time and date of apprehension of the petitioner. It is true that the prosecution evidence cannot be held to be unreliable merely because it is based on the testimony of the official witnesses but the prosecution would be require to establish that no circumstances has appeared in its evidence which would tend to show that the evidence of the official witnesses is not of unimpeachable character. In the instant case, the prosecution has miserably failed to prove that the evidence of the official witnesses is wholly reliable. It is in this context that the contention of the learned counsel for the petitioner that the prosecution should have joined independent witnesses witnesses assumes significance. It is note worthy that PW 3 Assistant Sub Inspector Satyawan has testified that when the police party had proceeded on the excise raid, he had asked six seven persons to join the raiding party but they refused to join. He further added that he did not ask any one from the nearby truck operators'' union to join the police party. As against this, PW Raj Pal has testified that they had asked the truck operators'' union people to join the raiding party but they did not agree. This part of his testimony contradicts the statement of PW3 Assistant Sub Inspector Satyawan, who had deposed that he did not ask any one from the truck operators'' union. Although PW2 constable Raj Pal has supported the testimony of PW3 Assistant Sub Inspector Satyawan that they had asked six seven persons to join the raiding party, yet no reliance can be placed on this version of the police inasmuch as the particulars of no such person have been produced on the record to enable the Court to satisfy as to whether the version of the police in this regard is reliable. The contention of the learned counsel for the petitioner that this part of the story of the prosecution is a fabrication cannot be easily brushed aside.

To conclude it is held that the prosecution has miserably failed to prove the time, place and date of recovery of the contraband from the petitioner beyond a shadow reasonable doubt and it has also failed to produce reliable link evidence to show that the sample of contraband sent to the Chemical Examiner remained intact till it reached the Chemical Examiner.

For the reasons recorded above, the impugned judgment of the learned Additional Sessions Judge, is found to be unsustainable. Hence the petition is allowed, the impugned judgment of the learned Addl Sessions Judge is set aside and the petitioner is acquitted of the charge under section 9 of the Opium Act. His bail bond and surety bond are discharged.

JUDGMENT accordingly.