Onkar Singh vs State of U.P.

T.P. Garg, J.—This criminal revision by Onkar Singh, accused, has been filed against his conviction u/s 9 of the Opium Act and sentence to undergo imprisonment till rising of the court and also to pay a fine of Rs. 1,000 or in default of payment of fine to further undergo R.I. for three months passed by I Ind Additional Sessions Judge, Bareilly, vide his judgment dated 26.5.1984, whereby the appeal filed by accused was dismissed and his sentence of 18 months'' R.I. was reduced to that of till rising of the court, besides imposing a fine of Rs. 1,000.

The facts of the case in brief are: that on 11.8.79 on receipt of a secret information, Raj Bahadur Shukla, Chief Inspector of Excise Department along with certain other officials of the department went to the Police Station Fatehganj (East) from where they took constable Anek Pal Singh and then proceeded to village Galthua, at about 1 p.m. The raiding party joined two public witnesses ; namely. Ram Prakash and Chhiddan of that village. The raiding party so formed went to the Baithak of the accused from where a tin containing 9 Kgs. 90 grams opium was recovered from near the Pumping set, for which the accused had no licence. A sample of 30-gms. opium was taken out of the recovered opium by the raiding party, and remaining opium was sealed in the sealed parcel. The recovery memo Ex. Ka. 1 was prepared. The accused was arrested and he was brought to the Police Station along with the recovered opium. F.I.R. Ex. Ka. 4 was lodged on the basis of the recovery memo and a case u/s 9 of the Opium Act was registered. The case was investigated and charge-sheet Ex. Ka. 8 was subsequently filed in the court. The accused pleaded not guilty to the charge u/s 9 of the Opium Act and claimed trial. The prosecution examined as many as six witnesses ; namely. Raj Deo P.W. 1, Mohammad Aslam P.W. 2, Ram Prakash P.W. 3, Constable Anek Pal Singh P.W. 4. Chhiddan P.W. 5, S.I.S. M. Mansal P.W. 6. Documents Ext. Ka. 1 to Ka. 8 were also relied upon.

In his statement u/s 313, Code of Criminal Procedure, the accused has denied the allegations and stated that it was a false case against him and witnesses have deposed falsely on account of enmity. Believing the prosecution version and disbelieving that of the accused, the trial court held the accused guilty u/s 9 of the Opium Act, convicted him thereunder and sentenced him to undergo R.I. for one and half years vide judgment dated 24.1.1984. Accused filed an appeal against his conviction and sentence, which was heard by the Additional Sessions Judge, Bareilly, who dismissed the same, but reduced the sentence of imprisonment till the rising of the court and also to pay a fine of Rs. 1,000, as stated above. It is against the aforesaid conviction and sentence, that the present revision has been filed.

Heard the learned Counsel for the Petitioner and learned A.G.A. for the State, and record gone through.

It was urged on behalf of the Petitioner that the Baithak from which the alleged recovery of opium is said to have been effected was not in the exclusive possession of the accused, but was in the Joint possession of all the members of the family, and even if, as per prosecution case, the accused alone was present at the time of recovery, there is no material on record, from which it could be sustained that he had exclusive knowledge of the tin containing the aforesaid quantity of opium lying near the Pumping set in the Baithak. The argument of the learned Counsel for the Petitioner has sufficient force. The prosecution examined only two so called independent P. Ws. viz., Ram Prakash and Chhiddan P. Ws. 3 and 5. Ram Prakash P.W. 3 turned hostile and has not supported the prosecution case. It is indeed surprising that both the courts below have still relied upon the testimony of Ram Prakash on the ground that he had signed the recovery memo. But then, both the courts below have committed a manifest error in ignoring the fact that Ram Prakash has himself stated that his signatures on recovery memo were obtained forcibly. The other witness Chhiddan P.W. 5 has admitted that there was litigation between the accused and his cousin brother, Sohan Pal Singh. The trial court as well as appellate court have both ignored the aforesaid fact indicating the strained relations between the accused and this witness, but then for no valid reasons. According to them, the aforesaid circumstance was not so strong as would lead Chhiddan P.W. 15 to make a false statement in the court. But then, the said conclusion is not free from doubt. Admittedly, litigation between Sohal Pal Singh, cousin brother of Chhiddan and accused was going on much before the present recovery and so possibility of Chhiddan P.W. 5 having come to witness box to depose against the accused in any such matter for extraneous reasons on account aforesaid litigation cannot be ruled out and it goes to suggest that the evidence of Chhiddan P.W. 5 was not free from bias. Under the circumstances, it will not be safe to place reliance on the testimony of both the aforesaid P. Ws. If the same is ruled out of consideration, we are left with the sole testimony of the official P. Ws. It will be seen that no efforts have been made on behalf of the prosecution and official witnesses examined by it that the accused was in exclusive possession of the house of which the Baithak was a part and that no other member of the family was living therein except the accused. There being no such evidence on record, and rather being to the contrary that there were other members in the family of the accused, it will be presumed that the house, of which the Baithak was a part, was in Joint possession of so many persons, including the accused. This circumstance renders the entire prosecution case highly doubtful. Again there is no link evidence that may go show that the seals on opium sample packet and the remaining opium were not tampered with during all the period the same remained in possession of the official witnesses. It was for the prosecution to prove beyond reasonable doubt that the seals were not tampered with during transit or during the period opium packet remained in the custody of the Police Station concerned. Admittedly, the link evidence is lacking in the present case and no serious efforts were made by the prosecution to bring the same on record. This also makes the prosecution case quite doubtful. Further, the testimony of the official witnesses finds no support from any independent evidence on record. As stated above, the evidence of so-called independent witnesses is neither satisfactory nor reliable nor can the same be made the basis of any conviction of the accused. The official testimony thus finds no corroboration from any independent evidence. The Investigating Officer has furnished no explanation whatsoever as to how and why his choice fell upon only such persons of the village who were convenient to him and were rather at the beck and call of the police. The official witnesses have also not been able to explain as to whether the Baithak in question was in exclusive possession of the accused at the time of recovery, which has rendered their testimony as well unreliable.

In view of the above, I find that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Extending the same, therefore, to him, the present revision deserves to be accepted and the same is accepted. Consequently, the conviction and sentence of the accused passed by the courts below are both set aside and he is acquitted. His bail bonds are discharged. Fine, if paid, be refunded to him.