Naginder Singh vs The State of Punjab

M.M. Punchhi, J.—Naginder Singh has challenged his conviction u/s 9(a) of the Opium Act, maintained in appeal by the Sessions Judge, Faridkot, whenunder he has been sentenced to two years'' rigorous imprisonment and a fine of Rs. 200/- and in default three month''s further rigarous imprisonment.

The case of the prosecution may briefly be stated. On 16th January, 1977(sic), S. I. Bal Kishan along with other Police and Excise officials was present in village Takhtpura, where he received a secret information that Naginder Singh was an opium seller and if a raid on his house he conducted, opium was likely to be recovered. Thereupon, the said (sic) accompanied by Excise and Police officials went to the house of the Petitioner in village Rania, but before hand he had joined Karnail singh and Sher Singh P.Ws. of the village, to witness the contemplated recovery. At the house of the accused, his daughter Amar Kaur was present but he was not found present there. On search of the house, a tin lying under the heap of cotton, in the back room of the house was discovered. It contains 8 3/4 kilogram of opium. In that very search of the house, 22 bottles of illicit liquor wrapped up in gunny bag were recovered, in another portion of his house, of course again in the presence of Amar Kaur daughter of the Petitioner. Aftar necessary investigation, the police put up two separate challans, one u/s 6l(1)(a) of the Punjab Excise Act and the other u/s 9(a) of the Opium Act, against the Petitioner and his daughter Amar Kaur.

At the trial, besides S. 1 Bal Kishan (P.W 3) and Excise Inspector Yashwant Prashar (P. W 4) two witnessen of the village Karnail Singh (P W. 1) and Sher Singh (P. w 2) appeared to support the raid in the opium case, with which the present revision petition is concerned. Both the accused i. e father and daughter, denied the prosecution allegations and alleged that Karnail Singh (P W. 1) and Sher Singh (P.W.2) were in mical towards them and the case was false. The trial Court after the appraisal of the evidence c nvicted both the accused u/s 9(a) of the Opium Act. The trial Court sentenced Naginder Singh accused to two years'' rigorous imprisonment and a fine of Rs. 200/- in default further to undergo three months'' rigorous imprison-ment. Amar Kaur accused, being a minor. aged 14 or 15 years, was granted protection of the Probation of Offenders Act Naginder Singh appealed before the appellate Court but as stated before, his conviction as well as the sentence was maintained. At the appeal stage additional evidence was led by the Petitioner by invoking the provisions of Section 391 of the Code of Criminal Procedure, and produced a copy of judgment of the Additional Sessions Judge, Faridkat (Exhibit A 1 on the appeal record) which has resulted in acquittal in the other prosecution launched against the Petitioner and his daughter u/s 61(l)(a) of the Punjab Excise Act. A different Magistrate had convicted them u/s 61 (1)(a) of the abovesaid Act, but in appeal the conviction was set aside as per judgment dated 3rd July, 1976 afore referred. The Petitioner wanted to take aid of the finding arrived at in that decision. The learned Sessions Judge consi-dered the said judgment (Exhibit A (sic)) and opined that the Petitioner could not be acqu tted on, the short ground, that he was able to earn an acquittal in the Excise case from the Court of Additional Sessions Judge. Faridkot. He was mainly influenced by the fact that 8 3/4 killo-grams of op um was recovered from the house of the Petitioner and it was immaterial that at the time of the raid he was not present in his house

The learned Counsel for the Petitioner contended that the learned Session. Judge was in error in ignoring the decision of his colleage in a(sic) case put forward on the same recovery, the same raid, supported by the same evidence and against the same accused. He further maintained that after the acquittal of the accused in the excise case the State did not file any appeal against that order to this Court and that judgment had become binding between the accused and the State as far as the recovery of illicit liquor was concerned. He has taken me through that judgment and it is interesting to note, that the learned Additional Sessions Judge in that appeal chose to accept the prosecution case as a whole inasmuch as he did not doubt the recovery on the evidence of the witnesses. He went on to observe as fol-lows:

According to the evidence of the witnesses, the house from whose(sic) the recovery was affected, was at least in the joint possession of the two accused, although acording to the evidence another daughter of Naginder Singh also lived there. Anyhow, the house was at least jointly occupied by Naginder Singh and Amar Singh. Now the incriminating liquor was found lying in a bag and was not lying exposed to the view. There being no indication in the evidence as to which of the two accused had kept the liquor there, it would not be legitimate to assume that it had been kept there by both the accused. In the circumstances, it is possible that one of the accused, and it cannot be spelt out as to(sic) which of them, was probably unaware of the existence of the liquor in the house. Inevitably, it follows that neither of the two accused could be held to be in conscious possesion of the liquor and the learned Magistrate was, consequently, in error in listening the liability on both the accused. In the case decidec in 1972 C.A.R. 240 (sic) pavittar Singh v. The State of Bihar" the incriminating gun was found in the premises in the joint occupation of several persons and it was held that although there may be a grave suspicion that the Appellant was aware of the existence of the gun but the prosecution is bound to establish the facts from which the Court could have reasons to believe that he was aware of the existence of the unl(sic) cenced fire -arm. These observations apply with full force to the facts of the instant case as well and it is apparent that the recovery is not referable to the exclusive or conscious possession of either of the two accused.

It can safely be said that despite the recovery neither of the two accused was in conscious possession of the opium recovered from their house What is good in the Excise case must, if not necessarily, but at least to be on the safe side, be good for the opium case. It would be incongruous to maintain the conviction and to say on the same evidence that the two accused were in conscious possession of the opium and not in conscious possession of the illicit liquor, despite the fact that both of them were allegedly recovered at the same time from their house and both the articles were lying concealed and not visible to the naked eye.

Before parting with the judgment, it may be mentioned that no fault could be found in the reasoning of the learned Sessions Judge in the appreciation of evidence of the PW.s. The error has crept in only on account of the approach. All benefit of doubt arising from the prosecution case must go to the accused. The judgment of the learned Additional Sessions Judge is part of the record of this case and it cannot be lost sight of The prosecution cast may be true but that is not enough. It must be true in order to sustain the conviction. The defence of the Petitioner based upon the principles of res judicata, now well known to be available to the criminal trials, also could not be denied to him. In aid Jagdev Singh v. State of Punjab Cr. A. No. 599 of 1975., Criminal Appeal No. 599 of 1975, decided on January 24. 1979(sic), be seen.

For the aforesaid reasons, this revision(sic) petition is accepted, the conviction and sentence of the Petitioner is set aside and he is hereby acquitted. Fine, if paid, be refunded to him.