Rajinder Kumar vs State of Punjab

S.D. Bajaj, J.

Within the territorial jurisdiction of Police Station City Ferozepore in State of Punjab of the Indian Union Rajinder Kumar convicted accused/petitioner was found in possession of 21/2 kgs. of charas on June 5, 1983. On being prosecuted for it under Section 61 of the Punjab Excise Act No. 1 of 1914 the accused pleaded `not guilty'' thereto and claimed to be tried. Vide its impugned judgment dated February 18, 1986 learned trial Court convicted him of the commission of the offence charged and sentenced him to undergo rigorous imprisonment for a period of one year and to pay Rs. 1000/ as fine. In default of payment of fine convicted accused/petitioner was ordered to undergo rigorous imprisonment for a further period of three months. Criminal Appeal No. 37 of 1986 filed against it before the learned lower Appellate Court was dismissed on May 9, 1986. Feeling aggrieved from the impugned judgments aforesaid of the learned two courts below, accused Rajinder Kumar has filed Criminal Revision No. 622 of 1986 in this Court.

I have heard Shri Ravinder Chopra, Advocate, for the petitioner, Shri S.S. Kang, D.A.G. Punjab for the respondent State and have perused the entire relevant material on record very carefully.

First and foremost contention raised by the learned counsel for the petitioner is that independent witnesses of the locality were not associated during search. It has repeatedly been held by this Court in Raghbir Singh and another v. The State of Haryana, 1990(2) Chandigarh Law Reporter 695; State of Punjab v. Gurmej Singh, 1991(2) Recent Criminal Reports 361 ; State of Punjab v. Gurnam Singh, 1991(3) Recent Criminal Reports 412 and Gurvel Singh v. The State of Punjab, 1992(1) Resent Criminal Reports 114 that failure of the Investigating Officer to join independent witnesses of the locality in investigation sounds the deathknell of the prosecution case set up against the accused, conviction based by the learned trial Court on the statement of the police and excise officials cannot be sustained and the accused is entitled to secure an acquittal on this score. In line with the ratio of the decisions aforesaid conviction of accused Rajinder Kumar in the present case also falls through and has to be set aside.

There is no tangible explanation for the difference in contents of Ex. DA and Ex. PE. Either of the two is obviously false. Benefit in this regard would go to the accused. Convicted accused petitioner thus earns an acquittal on this score as well.

Copies of the search memos on the police file Ex. DB and Ex. DC did not have the signatures of attesting witnesses thereon. Obvious conclusion is that they were not present at the time of the search or declined to attest them because the search had not been made by the Investigating Officer in their presence. It reflects adversely on thee fairness of the investigation conducted against the accused petitioner and lends credence to his plea taken in defence that he was falsely inculpated for reason of having a quarrel with the Investigating Officer. Speaking for the Court in State of Punjab v. Gurmej Singh, 1991(2) Recent Criminal Reports 361 (Mrs.) H.K.S. Sendhu, J. observed, "The police party was holding a picket in order to check crime and the Investigating Officer could very well assume that he was likely to come across some persons carrying contraband articles, therefore, it was incumbent upon him to call some witnesses before holding the picket. Mere statements of two police officials were not sufficient to maintain conviction of the respondent. The demanding degree of proof traditionally required in a criminal case and the devaluation suffered by a witness who is naturally involve in the fruits of the investigative efforts suggests the legitimate search for corroboration from any independent or unfaltering source, the human or circumstantial to carry conviction in the mind of the Court which is lacking in the present case."

For the legal infirmities aforesaid, Criminal Revision No. 622 of 1986 succeeds and is allowed. Accused Rajinder Kumar is given the benefit of doubt and acquitted. The accused is on bail from this Court vide order dated May 14, 1986. Bail bond furnished by his surety and the personal bond put in by the accusedpetitioner himself before the learned trial Court shall both stand discharged.