Sadhu Singh vs State of Punjab

V.S. Aggarwal, J.

The learned Judicial Magistrate Ist Class, Amritsar held the petitioner guilty of the offence punishable under Section 9 of the Opium Act. The petitioner was sentenced to undergo Rigorous Imprisonment for 21/2 years and to pay a fine of Rs. 1,000/. In default of payment of fine, he was directed to undergo further rigorous imprisonment for three months. Aggrieved by the said judgment and order of sentence passed by the trial Court, the petitioner preferred an appeal in the Court of Sessions. Learned Addl. Sessions Judge, Amritsar on 14.5.1987 dismissed the appeal. Hence, the present revision petition.

The relevant facts are that on 9.3.1983, a nakabandi was held on Majitha Road, bypass in the area of Ganda Singhwala by SubInspector Kartar Singh. He was assisted by ASI Harbans Singh and other police officials. They were certain members of the detective staff with SubInspector Kartar Singh. At about 6.00 a.m. the petitioner was seen coming from the side of Milk Plant Verka. On seeing the police party, he tried to retreat his steps. This aroused suspicion in the mind of SubInspector Kartar Singh. The petitioner was apprehended. The person of the petitioner was searched. Ten kilograms opium wrapped in a glazed paper was recovered. The same had been placed in a gunny bag flung over the shoulder of the petitioner. SubInspector Kartar Singh took a sample of 10 grams opium. The sample and rest of the opium were converted into two separate parcels. Both the packets were sealed and taken into possession. Vide recovery memo, ruqa was sent to the police station on the basis of which formal First Information Report was registered. Subsequently, sample was sent for chemical analysis. On receipt of the report that it was opium, the challan under Section 173 of the Code of Criminal Procedure was submitted against the petitioner.

The defence of the petitioner put forward in his statement under Section 313 of the Criminal Procedure Code was that he has falsely been implicated. His contention was that he had a quarrel with the police in Azad Hotel near Amritsar busstand. As a result of that he has falsely been implicated.

During the course of arguments, learned counsel for the petitioner highlighted the fact that no public witness had joined and in the absence of public witness, the case of the prosecution is suspicious. He further argued that there was tampering with the case property. Representative sample was sent after 3 months of the alleged recovery having been effected.

In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubt. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.

In the present case, the State examined two witnesses namely; Harbans Singh ASI who appeared as PW 1 and Kartar Singh PW 2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary that in such recoveries the public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of a public witness. This reflects adversely on the prosecution version.

Not only that, sample was sent after three months of the alleged recovery having been made. There is no explanation as to why more than three months took place for sending the sample. The Mall Khana Moharrir in his affidavit has simply stated that the sample and the case property was not tampered with. The argument that delay should not prove fatal in the present case, must fail. This is for the reason that the said Mall Khana Moharrir had not been tendered for crossexamination. In addition to that, both official witnesses contradict each other as to whom seal after use was given. According to ASI Harbans Singh, seal was handed over to Head Constable Darshan Singh while Inspector Kartar Singh PW 2 stated that after use seal was given to ASI Harbans Singh. These facts assume importance keeping in view that the sample was retained in the Mall Khana for a very long time. Chances of the property, therefore, to be tampered with could not be ruled out. Keeping in view the facts mentioned above, petitioner is, therefore, entitled to benefit of doubt.

For these reasons, revision petition is accepted. The judgment and order of sentence passed by the trial Court and the judgment of the learned Addl. Sessions Judge are set aside. Petitioner is acquitted awarding him the benefit of doubt.