Narain Singh vs State of Haryana

K.P.S. Sandhu, J.(Oral)

Narain Singh petitioner was separately tried in two cases one case under section 9 of the Opium Act and other under Section 61 of the Punjab Excise Act for possession of charas although the opium and the charas were recovered at one and the same time from one and the same truck (tin box). The petitioner was convicted and sentenced to rigorous imprisonment for one year in the opium case and in the Excise Act case the petitioner was sentenced to rigorous imprisonment for six months and a fine of Rs. 500, in default further rigorous imprisonment for three months, by the trial Court. Against his conviction under the Opium Act the petitioner has filed Criminal Revision No. 40 of 1984 while against his conviction under the Excise Act he has filed Criminal Revision No. 41 of 1984. Both these revisions would be disposed of by this order. After his conviction by the trial court in both the cases the petitioner filed separate appeals. Both were dismissed by the Sessions Judge, Bhiwani, vide his order dated 6th January, 1984.

On receipt of secret information that the petitioner had gone to U.P. to bring opium and that he would get down at the bus stop of village Sirsa at about 7 p.m. on 26th September, 1979, Inspector Ram Bhaj along with some other police officials went to the bus stop of village Sirsa. He associated Ajit Singh Sarpanch of village Dang Khurd and Deep Chand member panchayat of the same village. When the party reached the bus stop of village Sirsa they found the box with a key. It was found that the box contained four packets of opium and seven packets of charas. The charas and opium were taken into possession by the police and a ruqa was sent to Police Station, Bhiwani. Samples were taken from the opium and the charas and were sent to the Chemical Examiner. According to the first report of the Chemical Examiner which is Exhibit PE, as far as the sample of opium is concerned it was opined that it was opium but no percentage of morphine was found in the same. As regards the sample of charas, it was found to be charas. However, the lower appellate Court sent another sample of opium for chemical examination, according to the report of the Chemical Examiner, 4.9 per cent morphine was found in the same. After due investigation the petitioner was sent up for trial.

In his examination under section 313 of the Code of Criminal Procedure the petitioner pleaded false implication at the instance of Roop Chand Sarpanch against whom the petitioner fought election and after losing the same had filed an election petition which was pending. In defence the petitioner examined Panna Lal DW1 who stated that the petitioner had filed an election petition against Roop Chand and that the same was pending. DW2 Sube Singh stated that there was no bus stop at village Sirsa. However, he stated that the conductor could drop any passenger anywhere he liked. The petitioner also tendered in evidence Exhibit D2, a copy of the judgment of the High Court; Exhibit D3, a copy of the election petition filed by the petitioner against Roop Chand Sarpanch and Exhibit DX, the statement of Ajit Singh PW in another case where he had stated that he appeared in the opium and charas cases against Narain Singh petitioner since his signatures had been obtained by the police on some paper and nothing was recovered in his presence from the petitioner.

Out of the three alleged eyewitnesses of the recovery, the prosecution gave up Deep Chand as won over and thus the prosecution evidence consists of the statements of two eyewitnesses Ajit singh PW1 and Inspector Ram Bhaj PW4. Inspector Ram Bhaj has stated that he tried to join some persons from the village of the petitioner but they refused to do so when he was questioned as to whether he had mentioned this fact in the zimni he replied in the affirmative but when he was asked to refer to the zimni he refuses to do so. He further stated that he did not take any action against the persons who had refused to join the investigation. In this situation, it cannot be safely said that he in fact tried to join any persons from the village of the petitioner. Ajit Singh PW admittedly is a person who was known to Inspector Ram Bhaj since long and used to visit him. Although Ram Bhaj stated that the did not know when Ajit Singh PW visited him but Ajit Singh PW in very certain terms stated that he visited Inspector Ram Bhaj very often. So, it cannot be said that Ajit Singh was an independent witness. The learned lower appellate Court has come to a finding that Ajit Singh made statement Exhibit DX due to newlyforged friendship with Narain Singh petitioner. So, if Ajit Singh is such a witness who can go to the length of making false statement for certain reasons as held by the learned trial Court, I do not think that any reliance can be placed on his evidence especially when he was on intimate terms with Inspector Ram Bhaj. Another glaring infirmity in the prosecution case is that when the caseproperty contained in the truck was produced in the Court it was found that the charas had been tampered with and instead coal and stones were found. The opium was also contained in the same box. So, it necessarily follows that the whole case property has been tempered with. The conclusion of the lower appellate Court that the petitioner himself might have done it is not based upon any evidence on record. The interference would be that it has been tampered with by the prosecution itself. So, I am of the considered opinion that, in view of the aforesaid infirmities in the prosecution case, it would not be safe to allow the conviction of the petitioner to stand in both the cases. Consequently I give the benefit of doubt to the petitioner and acquit him of the charge in both the cases. The fine, if recovered in the excise case, could be refunded to the petitioner.

JUDGMENT accordingly.