Nirmal Singh vs State of Punjab

A.S. Nehra, J.

Nirmal Singh, petitioner, was convicted under Section 9 of the Opium Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2000/ or in default of payment of fine, to undergo further rigorous imprisonment for six months by the Judicial Magistrate Ist Class, Patti, vide his judgment and order dated 25.11.1986. Appeal filed by the petitioner against his conviction and sentence was partly allowed by the learned Sessions Judge, Amritsar, on March 13, 1987, and his sentence of rigorous imprisonment was reduced to one and a half years but the sentence of fine was maintained. Hence this revision petition.

Prosecution story as unfolded by ASI Gursharan Singh (P.W. 2), briefly stated, is as under :

On March 22, 1984, ASI Gursharan Singh alongwith Police force was proceeding from Mari Megha to Mari Kamboke along the defence drain. When they reached near the bridge drain from where the passage leads to Mari Kamboke, the petitioner was seen coming from the opposite direction. On seeing the police party, the petitioner tried to slip away but he was apprehended on suspicion. On his search, he was found carrying a bag on his right shoulder and opium weighing 10 Kgs. was recovered from that bag. After drawing a sample of 50 grams, the sample and the remaining opium were sealed and taken into possession vide recovery memo Ex. P.A. Currency notes amounting to Rs. 20/ were also recovered from the petitioner and the same were taken into possession vide recovery memo Ex. PE. On the basis of ruqa, Ex P.C. sent by ASI Gursharan Singh to the police station, formal FIR Ex. PC/1, was registered. On the same day, the case property was entrusted to MHC Kabul Singh and on receipt of the report from the Chemical Examiner, the petitioner was sent up for trial.

The prosecution to prove its case, examined Constable Malook Singh (PW 1) and ASI Gursharan Singh (PW 2), who corroborated the above version on its material details. The prosecution also tendered in evidence report, Ex. PE of the Chemical Examiner and affidavits, Ex. PF and PG, of formal witnesses.

When examined under Section 313, Criminal Procedure Code, the petitioner denied the prosecution allegations and claimed that it was a false case. He stated that he had come to enquire about the marriage of a relation and he was falsely implicated in this case. In his defence, he examined Atma Singh, Reader to DSP, Patti (DW 1), who stated that on March 24, 1984, an application was received from Manjit Kaur and the same was sent to S.H.O., Khalra, for investigation and enquiry. The petitioner also tendered in evidence copy of that application which is Ex. DA.

Learned counsel for the petitioner has argued that there is a discrepancy in the two statements about the article recovered as it is the case of the prosecution that 10 kgs. of opium had been recovered, the Investigating Officer described it to be 10 grams. The lower appellate Court has rightly observed that it is a typographical mistake. In the Punjabi record, the statement of ASI Gursharan Singh (PW 2) clearly shows that the recovery was 10 Kgs. of opium. Even in the English record, the description is clear. If the recovery was 10 grams, there could not be taking of sample of 50 grams. No advantage of this typographical mistake can be given to the petitioner.

Learned counsel for the petitioner next argued that there was no independent corroboration to the recovery. This argument is also devoid of any merit. In the present case, the police was on patrol and the recovery was effected from near the drain where no witness could be expected. Thus, the absence of independent corroboration to the recovery cannot be considered fatal to the prosecution case. It will at best require greater scrutiny of the testimony of the official witnesses.

Learned counsel for the petitioner also contended that the PWs had given different description about the distance of the villages from the place of recovery. Agreeing with the finding of the learned appellate Court that the distances are obviously on rough estimates, on the basis of which it cannot be held that the PWs have given different description of the place of recovery, I reject the contention of the learned counsel on this aspect.

Learned counsel for the petitioner further contended that there was fallacy about the place of arrest of the petitioner inasmuch as the petitioner had claimed that he had been arrested from the house of his relation where he had come to enquire about the marriage whereas ASI Gursharan Singh (PW 2) stated that the petitioner had been arrested from the house of Karam Singh of Khalra. No evidence had been led by the petitioner in support of his plea. Ex DA which is the application proved on the record is alleged to have been sent by Manjit Kaur, wife of the petitioner, to the D.S.P., Patti, but even Manjit Kaur was not put to the witness box to narrate the facts and circumstances in which the petitioner was arrested. The application was received by D.S.P., Patti, on March 24, 1984 i.e. two days after the recovery. Therefore, no advantage of moving such an application can be given to the petitioner.

After hearing the learned counsel for the petitioner and Mr. Parminder Singh, Assistant Advocate General, Punjab on behalf of the State and going through the evidence on the record, I find no merit in this revision petition and dismiss the same.