Mangal Singh vs The State of Punjab

Gurnam Singh, J.—The criminal revision petition is directed against the judgment of the learned Additional Session Judge, Amritsar, vide which the appeal filed by Mangal Singh against the order of his conviction and sentence, was dismissed.

The prosecution story, briefly stated, is that on 12th October, 1970, sub-Inspector Harbhajan Singh Station House Officer Tarn Taran held nakabandi on the bridge Alladinpur at about 6 p.m. He had joined with him Excise Inspector Balkishan and Darbara Singh, P.Ws. Mangal Singh petitioner was seen coming on a motor cycle. Sub Inspector Harbhajan Singh stoped him. Mangal Singh accused-petitioner was carrying a box on the carrier of his motor-cycle. The lock of the box was opened by the key produced by the accused-petitioner, and five kgs. of opium was recovered from therein. Ten grams of opium was separated from the lot recovered, as a sample and sealed. Remaining opium was also sealed. For sealing both the parcels, the seal of the Excise Inspector, bearing initials BKK, was used. On a ruqa sent by Sub-Inspector Harbhajan Singh case First Information Report No. P.D./1, was recorded. The sample of opium was sent for chemical examination from where report Exhibit P.F., which was to the effect that the sample contained no opium, was received. The Assistant Chemical Examiner also asked another sample out of the opium for further examination. Sub Inspector Harbhajan Singh submitted application Exhibit P.G. before Sh. Pritam Singh Bedi, Executive Magistrate, on 9th February, 1971 and requested for taking the sample out of the sealed packet of opium. He also requested that fictitious No. 41 dated 2nd September 1971 u/s 9 of the Opium Act/Police Station Tarn Taran, be recorded on the sample. The learned Executive Magistrate broke open the seal of the tin and took out a sample of Opium from the same. The sample as well as the remaining opium were separately sealed. The sample so taken, was sent to the Chemical Examiner and he found it to contain 2.8% morphine. The petitioner was chalanged after necessary investigation of the case.

The prosecution examined Darbara Singh Head Constable Jarnail Singh, Excise Inspector Balkishan, Sub Inspector Harbhajan Singh and Bedi Pritam Singh, Executive Magistrate, as prosecution witnesses.

Excise Inspector Balkishan and Sub Inspector Harbhajan Singh corroborated the prosecution story in all its details while Darbara Singh did not fully support the prosecution version. Darbara Singh P. W., was allowed to be cross examined at the request of the Prosecuting Sub Inspector. In Jagir Singh v. The State (Delhi Administration) AIR 1975 S.C. 1450, it has been observed by the Hon''ble Judges of the Supreme Court that:--

It is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony.

In view of this authoritative pronouncement, the evidence of Darbara Singh, P.W,, has to be ignored. The testimony of Sh. Balkishan and Sh. Harbhjan Singh, has been relied upon by both the Courts below. There is nothing on the file to suggest that they had any animosity to depose against the petitioner. From their evidence, therefore, it is established that recovery had been effected from the petitioner.

Now what has to be seen, is as to whether the substance recovered from the possession of the petitioner turned into a sealed parcel in the presence of the accused, was found to contain no opium by the Chemical Examiner. Sub-Inspector Harbhajan Singh, thereafter took the tin, alleged to have been recovered from the petitioner, to Sh. Pritam Singh Bedi, Executive Magistrate, who after breaking open the seals, took out a sample of opium and turned the same into a sealed parcel with his own seal. The rest of the opium was also sealed with his seal. The sample, so taken out was sent to the Chemical Examiner and it was found to be containing some parcantage of morphine. The Learned Counsel for the petitioner has vehemently contended that there is no guarantee that Inspector Harbhajan Singh produced the substance recovered from the petitioner and that the second sample was taken out of that substance, because it was not taken out in the presence of the accused nor in the presence of the Excise Inspector Sh. Balkishan, with whose seal the same had been sealed. He further urged that no specimen of the seal was produced before Sh. Pritam Singh Bedi, so that he could compare the seals on the tin with the same, to satisfy himself that the tin was the same which had been sealed at the time of the recovery.

It is in the statement of Sh. Balkishan, Excise Inspector, that the sample of the remaining opium was sealed with his seal at the spot and the seal was handed over to him after its use. There is nothing in his statement to show that the seal, which had been returned to him, was not thereafter taken by Sub-Inspector Harbhajan Singh from him.

The learned Executive Magistrate did not summon the accused petitioner when he took out the sample from the tin. The Executive Magistrate was also not shown any specimen of the seal used for sealing the tin. The Executive Magistrate also took no steps to verify as to whether the tin, out of which he took the sample contained the same substance which had been recovered earlier from the possession of the accused petitioner. Thus there is no convincing evidence to show that the Executive Magistrate had taken sample out of the opium alleged to have been recovered from the possession of the accused petitioner and in such circumstances the possibility cannot be ruled out that the sample may have been taken out of some other opium in the presence of the Executive Magistrate.

In view of the aforesaid facts it can be safely said that the prosecution has not led reliable evidence to show that the second sample of opium had been taken out of the opium recovered from the possession of the accused petitioner and, therefore, the case against him is not free from doubt. This revision petition is, therefore, accepted and by giving the benefit of doubt, the petitioner is a acquitted of the charge and his conviction and sentence are set aside. He should be set at liberty atonce, if not required in any other case.