Mukand Singh vs State of Punjab

B.S. Yadav, J.

The prosecution story in brief is that Mukand Singh petitioner was found in possession of 5 Kgs. of opium when he was apprehended near the drain bridge in the revenue estate of Patta Hira Singh, by P.W. 1 S.I. Gurcharan Singh on 21st June, 1978 at about 8.15 P.M. while he alongwith A.S.I. Ajmer Singh (P.W.2) and other persons was returning to Police Station Nihal Singh Wala in a jeep from village Raonta. Sample was separated from the recovered opium. The sample and the remaining bulk of opium were separately sealed and taken into possession by the said Police Officer. The sample was sent to the Assistant Chemical Examiner, who vide his opinion Exhibit PD found the contents to be opium. The result of his analysis was as follows :

Results.

Marked here 12830/78

Total sample received. 100 grams

Sample consumed one gram

Morphine Present

Meconic Acid Present

Morphine% 3.6%

Physical Appearance Dark brown soft mass. After necessary investigation the accused was chargesheeted.

At the close of the prosecution evidence the petitioner was examined under Section 313 of the Code of Criminal Procedure. He denied the prosecution allegations and pleaded false implication. In his defence he examined D.W. 1 Inder Singh who stated that 21/2 years back the house of petitioner was searched by the police but nothing incriminating was recovered. He further stated that the petitioner was taken away by the police and was falsely involved in this case.

The learned Judicial Magistrate Ist Class, Moga, who tried the case, found the accused guilty and convicted him and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/. The learned Court also gave reasons for not granting probation to the petitioner under section 360 of the Code of Criminal Procedure or section 4 of the Probation of Offenders Act.

Relying upon Boota Singh v. The State of Punjab, 1980 C.L.R. (Pb.& Har.) 21, the learned counsel for the petitioner argued that it was for the prosecution to show that the material recovered from the petitioner was opium and, therefore, it was necessary for the Chemical Examiner to find out whether the contents of sample conformed to any of the forms of opium specified in clauses (1) to (3) of section 3 of the Opium Act. In that case also the report containing the results of the Assistant Chemical Examiner was similar in nature as the one received in the present case except that figures in that case were different. In that case the accused was acquitted because it was held that under section 9 of the Opium Act it was the possession of opium as defined in section 3 of the Act which was an offence and not that of morphine. In the opinion of the learned Judge, according to the books on pharmacology, morphine is one of the important alkaloids of opium and that showed that merely because a substance contained morphine in high percentage or otherwise, it could not be considered as opium within the meaning of section 3 of the Opium Act.

It is not necessary to discuss Boota Singh''s case (supra) in detail because in a latter Division Bench judgment reported as Inder Singh v. The State of Punjab, 1981 C.L.R. 114 it was remarked :

"The question is whether the Chemical Examiner is required to determine all the alkaloids which are present in the opium or a quite number of them, besides morphine. We agree with the observations of the learned Single Judge in Buta Singh''s case (supra) only to the extent that the presence of morphine alone will not bring the substance analysed by the Chemical Examiner within the ambit of the definition of opium as given in the Act. He has to establish the presence of meconic acid also with it before he gives his opinion about the substance examined by him to be opium. The Chemical Examiner was categoric in his testimony that meconic acid with morphine is not present in any other papaver except papaver somniferumlin."

It was further remarked :

"Morphine alone does not fall within the definition of `Opium'' as contained in the Act and we need not have a comparative study of the definition of that medicinal preparation given in the Dangerous Durgs Act. In view of the above discussion, no fault can be found with the report of the Chemical Examiner. Although in Buta Singh''s case (supra) the report of the Chemical Examiner mentioned the presence of morphine and meconic acid but the learned Single Judge looked at his reports under the impression that he had examined the substance only with a view to find out whether it contained morphine, which in our view was not a correct approach. That judgment does not say anything about the test of meconic acid or about its necessary presence alone with morphine to determine the genus, that is, palaver somniferumlin and for that reason does lay down correct law".

In the present case the Chemical Examiner has found more than 0.2% morphine in the sample. The presence of meconic acid was also noticed. Therefore, in the present case the article recovered from the petitioner must be held to be opium in view of the observations made in Inder Singh''s case.

The learned counsel for the petitioner next argued that in the present case no independent witness was joined. The prosecution version is that the accused was apprehended when the police party was returning from village Raonta. The accused met the party by chance near the drain bridge. In such circumstances it cannot be accepted that some independent witness should have been joined by the Investigating Officer at the time of recovery of opium from the petitioner.

P.W. 1 S.I. Gurcharan Singh and P.W. 2 A.S.I. Ajmer Singh have fully supported the prosecution version. The accused has not alleged any enmity with the local police. The statements of these witnesses cannot be discarded merely on the ground that they are official witnesses.

Lastly Shri Verma argued that the petitioner is a first offender and he should be released on probation. The learned trial Court has given sound reasons for not releasing him on probation and I agree with those reasons. The offence committed by the accused is an economic offence as well as against the society. He is either smuggler or a paddler in opium.

For the foregoing reasons I do not find any force in the present petition and dismiss the same.