Man Singh vs State of Punjab

B.S. Yadav, J.—The facts leading to this revision petition are that on 19th May, 1979 S.I. Sham Nath (P.W.1), who in those days was posted as Station House Officer, Kotwali, Patiala, accompanied by A.S.I. Prem Singh (P.W.2) and some other police officials was returning in an official car after investigation of some cases. When this party reached near Gurdwara Jhal Sahib, the petitioner was seen coming from the opposite direction on a scooter bearing registration No. DHK 9009. S.I. Sham Nath asked the petitioner to stop. On search of the scooter, 5 Kgs. of opium wrapped in a waxed paper was recovered from its diggy. 10 grams of opium as sample was separated from the bulk. The sample and the remaining opium were separately sealed and were taken into possession by S.I. Sham Nath after preparing usual recovery memo. The sealed parcel of the opium was sent to the Chemical Examiner who vide his report Exhibit PD found its contents to be opium. The petitioner was chargesheeted in due course.

The prosecution story has been supported by the above named witnesses.

After the close of the prosecution evidence the petitioner was examined under section 313 of the Code of Criminal Procedure. He denied the prosecution allegations. In his defence he examined 5 witnesses whose evidence will be discussed at the proper stage.

The learned Additional Chief Judicial Magistrate, Patiala, believed the prosecution evidence and accordingly convicted the petitioner under Section 9 of the Opium Act and sentenced him to undergo rigorous imprisonment for 11/2 years. Feeling aggrieved against his conviction, the petitioner filed an appeal which was heard by learned Sessions Judge, Patiala. The appeal did not meet with any success. The petitioner has now come to this Court in revision.

Though while exercising regional jurisdiction this Court is not expected to reappraise the evidence as if it is hearing an appeal but there are some peculiar circumstances of the case which make me to go into the evidence. Admittedly, in the present case no independent witness was joined. Absence of independent witness at the time of recovery from the petitioner was pointed out before the learned trial Court but it brushed aside that argument on the ground that the police on that date had investigated two cases under the Opium Act against one Mohammad Zabar at that very place and when the investigation of that case was completed, the petitioner appeared there on a scooter. The learned trial Court failed to notice that the prosecution case is that the recovery from Mohammad Zabar was effected near village Marhian Vir Ji (vide statement of P.W. 1 Sham Nath) and when the police party was returning, the petitioner was apprehended near Gurdwara Jhal Sahib. Another thing to note is that the petitioner had led evidence to the effect that long before his alleged apprehension by the Police, D W. 3. Tara Singh had sent a telegram, copy Exhibit D 2. on 19th May, 1976 at 2 P.M. to the Inspector General of Police, Punjab, about the taking away of the petitioner by the Patiala Kotwali Police at 11 P.M. Both the learned Courts below have brushed aside this defence evidence on two grounds. The first ground was that the petitioner was a known smuggler and such persons usually create some evidence to be used in case they are apprehended. The second ground pointed out was that the petitioner had filed an application on 16th March, 1982 for summoning Peshi Clerk of the Court of Additional Sessions Judge, Patiala, with the Peshi Register for 19th May, 1979 to show that he was present in that Court upto 5 P.M. and this application contradicted the above telegram. Except the bald statement of P.W. 2 Prem Singh A.S.I., there is no evidence that the petitioner was known smuggler, P.W.1. S.I. Sham Nath, who in those days was posted at Station House Officer, Kotwali, has stated that the petitioner was not known to him. If the petitioner was a known smuggler, the said witness would have known that fact. While examining the petitioner under Section 313, Criminal Procedure Code, it was not put to him that he was a known smuggler. The application referred to above, was also not put to the petitioner during that examination. Therefore, these circumstances could not have been used against him to contradict his defence evidence.

The prosecution on the face of it looks very improbable. S.I. Sham Nath (P.W.1) has stated that when the vehicle in which the police party was going, reached near Gurdwara Jhal Sahib, the petitioner came there on a scooter and he stopped him (i.e. petitioner). The statement of that witness on the face of it was not convincing because the police usually does not stop a scooter unless the papers of the scooter have to be checked. Realising this infirmity, P.W.2. Prem Singh A.S.I. has stated when the petitioner was seen coming on a scooter from the opposite direction, he told S.I. Sham Nath that the petitioner was smuggler in opium and thereupon he (i.e. Sham Nath) asked the petitioner to stop. P.W.1 Sham Nath has not stated that he had asked the petitioner to stop on the pointing out of A.S.I. Prem Singh (P.W.2). It may be pointed out that the petitioner was not found in possession of any document in respect of his scooter nor he was having a driving licence but he was not challaned under the Motor Vehicles Act.

P.W.1 Sham Nath has stated that Mohammad Zabar was apprehended at about 12.45 or 1 P.M. on that date and 5 Kgs of opium and 11/2 Kgs of charas was recovered from him. He has also stated that about 2 or 21/4 hours were spent in investigation of the case against Mohammad Zabar. Admittedly the petitioner was apprehended after the proceedings against Mohammad Zabar had been completed. Thus the petitioner must have been apprehended near about 3 P.M. However, telegram, copy Exhibit D 1, was sent by Tara Singh (D.W.2) at 2 P.M. Exhibit D.2 is the receipt about telegraph charges. Thus the prosecution story becomes doubtful on this very ground and the petitioner is entitled to acquittal. Copy of the telegram has been proved by D.W. 1 Manohar Lal, who is Clerk of the Central Telegram Office, Patiala. D.W. 3 Tara Singh stated that he had sent the above telegram. D.W. 3 Tara Singh and D.W. 4 Gurdial Singh have stated that the petitioner was taken away from his house by the police at 11 A.M. on 19th May, 1979.

The learned counsel for the petitioner has also argued that the petitioner has been prejudiced because the learned trial Court did not permit him to get another part of the bulk of opium examined by the Chemical Examiner. In this case it is not necessary to go into the question whether the accused in such case are entitled or not to get another sample examined by the Chemical Examiner.

For the foregoing reasons I accept the present revision petition and set aside the conviction and sentence of the petitioner and acquit him of the charge framed against him.