Rattan Singh vs State of Punjab

A.S. Banis, J.

The petitioner was convicted for an offence under Section 9(a) of the Opium Act and sentenced to undergo rigorous imprisonment for two years and fine of Rs. 1,000/., or in default of payment of fine to undergo further rigorous imprisonment of three month by the learned Judicial magistrate 1st Class, Jalandhar. On appeal, his conviction was upheld but his sentence of rigorous imprisonment was reduced to one year. The sentence of fine, with its default clause, was also maintained. He has challenged his conviction and sentence by way of this revision petition.

The prosecution case as set up at the trail was that on June 20, 1980, S.I. Om Parkash P.W. 2 and A.S.I. Gurdial Singh P.W. 1 were present at Bus Stand Adampur where at 5.45 p.m. he received secret information to the effect that the petitioner had stacked poppy heads in a Kotha situated in the field of Captain Bhajan Singh in the area of village Nauli. Thereupon he got registered a case against the petitioner vide F.I.R. Exhibit PB at Police Station Adamput. Thereafter the police party went to the said place. In the area of village Nauli after joining Roshan Singh Lambardar from the said village.

The petitioner was found present at the dera of the aforesaid Bhajan Singh. On interrogation, he produced a key from his pocket with which S.I. Om parkash P.W. 2 opened the lock of the Kotha and found 23 bags containing poppy husk lying therein. A sample of 250 grams of poppy husk was separated and sealed from each bags and the remaining poppy husk from the bags was also sealed. Each bag contained 42 Kgs of poppy husk. All these articles were taken into possession vide memo Exhibit P4. Visual site plan Exhibit P.C. of the place of recovery was also prepared.

The samples were sent to the Chemical Examiner, who confirmed the same to be of poppy husk heads due to the presence of morphine and meconic acid therein, vide his report Exhibit P.D.

At the trial, the petitioner denied the prosecution allegations and pleaded false implication at the instance of Charan Singh Lambardar of village Nauli, who was inimical towards him. His version is as follows :

"This false case as been planted against me at the instance of Charan Singh, Lambardar of Nauli because he is inimical towards me. In those days the police had intercepted a truck loaded with poppy heads and had summoned many person of the area. They were let off after accepting money form many of them and foisted a false case on me. False cases were also planted against. Tarlochan Singh and Pal Singh."

He also produced in defence, Karnail Singh D.W. 1, Lambardar of village Isharwal, Bata Singh D.W. 2. Member Panchayat of village Isharwal, Resham Singh D. W. 3, of village Nauli and Harbans Singh Constable D.W. 4.

P.W. 1 Gurdial Singh, ASI and P.W. 2 Om Parkash S.I. have supported the prosecution version as given in the earlier part of the judgment, but their testimony does not inspire confidence. The prosecution failed to comply with the mandatory provision of subsection (4) to (8) of section 100, Code of Criminal Procedure (hereinafter referred to as `the Code'') regarding `search''. No witness of the locality or the adjoining locality was joined although there was ample opportunity for the police to join independent witness from Adampur itself where the secret information was received or from village Haripur, Naurangpur of Nauli through which they happened to pass for reaching the spot. The police did join one Resham Singh lambardar of village Nauli, but he was not produced nor he could be called and independent witness as A.S.I. Gurdial Singh P.W. 1, admitted that this Reshan Singh was earlier also joined in two or three cases. Admittedly, the petitioner does not belong to village Nauli. He belongs to village Isharwal and he is also not a cultivator. The incriminating material was recovered from a Kotha situated in the field of Captain Bhajan Singh.

Entry Exhibit D.A. proved by Harbans Singh Constable D.W. 4 shows that Om Parkash S.I. (P.W. 2) left the Police Station on 20th June, 1980 at 9.30 a.m. in connection with a investigation of a murder case and returned to the Police Station at 11.00 p.m. There is no entry showing that the police had gone to village Nauli to effect the recovery of poppy husk on case was registered against the petitioner at Police Station Adampur.

Karnail singh D.W. 1, Lambardar of village Ishwarwal and Buta Singh D.W. 2, Member Punchayat, have supported the defence version and there is nothing against them. They are respectable persons of the village. If the petitioner was at all involved is concealing poppy husk bags, they would not have supported him. According to them, the petitioner resides in the village and does not cultivate the land and is a dailywage Labourer. Moreover, as observed earlier it is incumbent on the police officers effecting search of a citizens''s house to associate two independent person of the locality or of the adjoining locality as is required under Section 100 of the Code. The police can even prosecute the person who refuse to join in the search under Section 187 of the Indian Penal Code. In the circumstances of this case, it is very difficult to rely upon the statements of S.I. Om Parkash and A.S.I. Gurdial Singh P. Ws.

For the reason recorded it not safe to maintain the conviction of the petitioner. Accordingly the petitioner is given the benefit of doubt and acquitted of the charge.

In the result, the petitioner is allowed and the conviction and sentence recorded by the Courts below a set aside. The fine, if already paid, be refunded to the petitioner.

Petitioner allowed.