Malkiat Singh vs State of Punjab

M.L. Singhal, J.

This is a criminal revision filed by the petitioner against the order of Addl. Sessions Judge, Ludhiana dated 26.10.1987 whereby he maintained the conviction recorded by Judicial Magistrate Ist Class, Ludhiana vide order dated 7.8.1986, against him under Section 9(a) of the Opium Act, but reduced the sentence of imprisonment to one year R.I. and to pay fine of Rs. 2000/ from 1 years R.I. and fine of Rs. 2000/ passed upon him.

The prosecution case, in brief, is that on 26.3.1983, S.I. Rupinder Pal Singh, SHO P.S., Dehlon alongwith ASI Harbhajan Singh, ASI Sansar Chand H.C. Kashmir Singh, H.C. Sakattar Singh and others were present on the Abohar Canal Branch Bridge in connection with patrolling. S.I. Rupinder Pal Singh received secret information that Malkiat Singh, s/o Pakhar Singh and Hardev Singh s/o Chand Singh of Village Assi Kalan were selling poppy husk on the kacha passage runs from the bank of Abohar Canal branch to Village Killa Raipur under the Bohar tree which is at a distance of one furlong and that if a timely raid was conducted they could be apprehended while in possession of poppy husk in large quantity. He drafted ruqa. Ex.PA and sent the same to P.S. Dehlon on the basis of which case was registered vide formal FIR No. 74 dated 26.3.1983 under Section 9 of the Opium Act at P.S. Dehlon S.I. Rupinder Pal Singh started towards Village Killa Raipur. When they approached village Chubki, Jaswant Singh, PW met them. He was joined. Malkiat Singh, accused was apprehended at the spot. Hardev Singh accused managed to escape. Hardev Singh accused was known to H.C. Kashmir Singh since before. From the possession of Malkiat Singh and Hardev Singh, 25 bags of crushed poppy husk were recovered. Each bag contained 40 kilograms of poppy husk. 25th bag was containing 30 kilograms of poppy husk. 250 grams of poppy husk was taken out as sample from each bag. Samples were made into sealed parcels. Gunny bags were also made into sealed parcels. One dabba (tin) was also recovered which the accused Malkiat Singh was keeping in his hand. Samples and gunny bags were taken into possession vide memo Exhibit P.B. which was attested by ASI Harbhajan Singh and ASI Jaswant Singh. Rough site plan Ex. PC was prepared by the S.I. Rupinder Pal Singh. On return to the police station the case property was deposited in the malkhana with A.M.H.C. Sohan Singh. Samples were sent to the Chemical Examiner for chemical examination. The Chemical Examiner vide report Ex. PD reported that they contained poppy husk head. After investigation. Malkiat Singh and Hardev Singh, accused were challaned under Section 9 of the Opium Act. The accused were charged under section 9 of the Opium Act by the Judicial Magistrate Ist Class Ludhiana. They pleaded not guilty to the charge and claimed trial.

With a view to bring home to the accused the charge levelled against them the prosecution examined ASI Sansar Chand, SI Rupinder Pal Singh besides the evidence affidavits Ex. PE and Ex. PF of formal and the report of Chemical Examiner, Ex. PD.

Accused when examined under Section 313 of C.R.C. denied the imputations appearing in prosecution evidence against them and stated that it is a false case. They examined Kapil Dev DW1, Pritpal Singh DW2, Harchand Singh DW3 and Constable Kuldip Singh DW4.

At the conclusion of the trial, Judicial Magistrate Ist Class, Ludhiana convicted both the accused and sentenced them to undergo R.I. for 1 years each and to pay fine of Rs. 2000/ each. In default of payment of fine to further undergo R.I. for six months each. Both the accused went in appeal to the Court of Session. Addl. Sessions Judge, Ludhiana found the charge not proved against Hardev Singh. His appeal was accordingly accepted and he was acquitted. Appeal of Malkiat Singh was dismissed but this sentence was reduced to one year R.I. and fine of Rs. 2000/ or in default to further undergo R.I. for six months.

Still not satisfied, Malkiat Singh has come up in revision to this Court.

I have heard the learned Assistant Advocate for the petitioner and the learned Assistant Advocate General, Punjab and have gone through the record.

It has been submitted by the learned counsel for the petitioner that the case rests on the testimony of ASI Sansar Chand and that of SI Rupinder Pal Singh PWs. Both of them are police officials interested in the success of the case detected by them. It has been submitted that it would not be safe to hold the charge proved against the petitioner on the strength of the testimony of police officials when there is no corroboration to their testimony by independent witness Jaswant Singh. It is true that rule of caution only requires the court to look for independent corroboration to the testimony of police officials. There is, however, no rule of law that without corroboration, the police officials cannot be believed. Jaswant Singh PW belongs to village Jhamat. Accused belongs to Village Assi Kalan. They belong to the same vicinity and as such there could be reason that Jaswant Singh was persuaded not to support the prosecution.

It has been submitted by the learned counsel that there was no occasion for Jaswant Singh PW to have been available near bridge Chubki. There can be no surprise that if Jaswant Singh PW was available near bridge of Chubki. Jaswant Singh was exsarpanch of Village Chubki. It is true that Jaswant Singh had been a prosecution witness in some cases of P.S. Dehlon earlier. He was a prosecution witness in case FIR No. 267 dated 8/9.11.1978 under Section 61 of the Excise Act. He was a prosecution witness in case FIR No. 268 under Sections 353/332 IPC dated 10.11.1978. He was prosecution witness in case FIR No. 306 dated 29.12.1978 under Section 354 IPC. He was prosecution witness in case FIR No. 55 dated 23.2.1979 under Section 9 of the Opium Act. It is true that Jaswant Singh PW was not a stranger to the police. It is equally true that he was a prosecution witness 45 years ago in cases investigated by the police. It would not be proper to dub him as stock witness of the police when it has not been shown that he was a prosecution witness consistently in the cases investigated by the police. Anyway, if Jaswant Singh had been produced then his testimony could have been appreciated on the touchstone of probability. If he has not been examined by the prosecution we have to weigh the testimony of ASI Sansar Chand and that of SI Rupinder Pal Singh keeping in view that they are police officials interested in the success of the case detected by them. Court has to appreciate their testimony with little care and caution.

It has been submitted that it would not be safe to hold the charge proved against the petitioner on the strength of the testimony of police officials when there is no corroboration to their testimony. Rule of caution requires the Court to look for independent corroboration. There is however no rule of law that without corroboration police officials cannot be believed. Jaswant Singh hails from Village Jhanat. ASI Sansar Chand stated that Jaswant Singh PW was joined when he was standing at Chubki bridge. At that time he had come from his relation. He was thus a chance witness. Jaswant Singh was not new to the police. He had been appearing for the police in their cases earlier also. He was exsarpanch of village Chubki. He was a prosecution witness in case FIR No. 267 dated 9.11.1978 of Police Station Dehlon under Section 61 of the Punjab Excise Act. He was prosecution witness in case FIR No. 268 under Sections 363/352 of Police Station, Dehlon on 10.11.1978. He was prosecution witness in case FIR No. 306 dated 29.12.1978 of Police Station Dehlon under Section 354 IPC. He was also a prosecution witness in case FIR No. 55 dated 23.2.1979 under Section 9 of the Opium Act. Jaswant Singh was thus a convenient witness. It appears that he was cited as PW in the hope that he would support the prosecution case through and through and that he could be safely relied upon. Since Jaswant Singh was not an independent witness but was a convenient witness to the police, testimony of SI Rupinder Pal Singh and that of ASI Sansar Chand will have to be scrutinised with care and caution. Things would have been different had SI Rupinder Pal Singh not joined nonofficials witness altogether. In that event while weighing testimony of SI Rupinder Pal Singh and that of ASI Sansar Chand this fact could have been taken into account whether no nonofficial witness was available or some nonofficial witness was available and he had refused to join and whether this kind of inability on the part of SI Rupinder Pal Singh was or was not genuine. According to defence version the police came to the field of Harchand Singh who is Malkiat Singh''s brother and Hardev Singh''s father on 21.3.1983. Police took with them Harchand Singh''s younger son Balwinder Singh. On 24.3.1983, Harchand Singh went to Police Station alongwith Panchayat. He was detained at Police Station Dehlon but he was allowed to go as he was suffering from fever. He was asked to produce his son and brother Malkiat Singh in the Police Station and they were accordingly produced on 24.3.1983 in the Police Station. In this behalf Harchand Singh made application Ex. D2 to the Sarpanch of Gram Panchayat of their village. Gram Panchayat recorded proceedings in its resolution book as to what has happened to Malkiat Singh and Hardev Singh accused. On 21.3.1983 applications were sent to Chief Minister, Punjab and S.S.P. Chandigarh under certificate of posting. Ex. D1 is the certificate of posting. Harchand Singh sent telegram Ex. D3 (attested copy) to SSP Ludhiana on 24.3.1983 that his brother Malkiat Singh and son Hardev Singh were lying illegally detained at Police Station, Dehlon. If Malkiat Singh and Hardev Singh were at Police Station, Dehlon on 24.3.1983 how could they be at the place of recovery on 26.3.1983 with 25 gunny bags containing poppy husk in their possession. Defence version negatives altogether the prosecution version.

In my opinion finding that Malkiat Singh was found in possession of 25 gunny bags containing poppy husk on 26.3.1983 in the area of village Kila Raipur is patently erroneous and not at all sustainable. So, this revision succeeds and is accepted and the conviction and sentence recorded by the two courts below against Malkiat Singhrevisionpetitioner is set aside and he is acquitted of the charge framed against him.