Mohinder Singh vs State of Punjab

A.S. Garg, J.

The petitioner was intercepted by the police party headed by PW2 ASI Mohinder Singh in the area of village Tungwali on 23.12.1983 when he was allegedly carrying contraband article i.e. opium, which was found to be weighing two kgs. Ten grams of opium were separated as sample and the remaining opium was put in a Tin Dabba Exhibit P1 and sealed by PW2 ASI Mohinder Singh with his seal bearing impression `M.S''. The rough site plan Exhibit PD of the place of interception was prepared. Ruqa Exhibit PC was despatched to the Police Station for registration of the case, on the basis of which formal FIR Exhibit PC/1 was recorded. After the report of the Analyst Exhibit PE was received that the contents of the sample were opium, the petitioner was challaned and tried under Section 9(a) of the Opium Act. He was convicted under Section 9(a) of the Opium Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 250/ or in default of payment of fine, to undergo further rigorous imprisonment for one month by the learned trial Magistrate. His conviction and sentence were upheld by the lower appellate Court.

The main contention of the learned counsel for the appellant has been that no independent person was joined during the investigation of the case. The petitioner was not intercepted or caught as claimed by the Investigating Officer PW2 ASI Mohinder Singh but was arrested from village Khudi Kalan in the presence of Natha Singh Sarpanch and Jagrup Singh, Member Panchayat, and the opium has been foisted on him because the petitioner did not pull on well with the police people.

It is true that a criminal investigation cannot be left to a state of normlessness and certain criteria prescribed for such investigation must be adhered to. However, when one is confronted with the situation, as is in the given case, and when the alleged offender takes a plea of total innocence and false involvement, he is also required to bring some evidence on record.

In support of his defence plea that the police had taken him from village Khundi Kalan in the presence of DW1 Jagrup Singh, Panch, and DW3 Nathu Singh, Sarpanch, to the police station, where he was illegally detained for four days, and even though no incriminating article was recovered from him, he was falsely implicated in the present case, the petitioner examined the aforesaid witnesses.

In the situation that the accused has also to bring some evidence in such a case to get himself exonerated, the other circumstances have to be seen as to if the prosecution has complied with certain principles of a fair investigation. In the case in hand no independent person was joined by the police. Rather at any stage of the investigation, the purpose of presence of the police party at the place where the petitioner was allegedly captured has not been explained to make the case probable. The house of the petitioner was not raided to find out that any other part of the opium could be available at his place or he was dealing in such a contraband article. The police also did not try to trace the origin of the opium. They did not verify actually wherefrom the petitioner was coming and where he was proceeding. So to say there is no investigation in due course. It appears to be an exparte investigation and incamera proceedings and if the Court relies upon merely on the circumstances that a heavy quantity of opium is recovered, the principles of legal investigation cannot bed brushed aside. The prosecution must bring on record such evidence, which inspire confidence and the truthfulness. It is not expected that an accused should prove the exact reason for the annoyance of the police. He is expected to bring reasonable evidence on record. In this behalf he has brought into evidence DW3 Natha Singh, Sarpanch, and DW1 Jagrup Singh, Member Panchayat, in whose presence, it is claimed that the petitioner was taken by the police on the pretext that he was required in the police station. In such circumstances, the version of the prosecution becomes doubtful and on the sole ground that the opium is 2 kgs, I would not like to convict him. Therefore, the benefit of doubt must go to the accused in this case.

Hence, the revision is allowed and the conviction and sentence of the petitioner are set aside and he is acquitted of the charge.

Revision allowed