Sat Pal vs State of Punjab

Ujagar Singh, J.

ASI Harbhajan Lal who has been examined as PW 1 was posted in CIA staff Gurdaspur and on 25.11. 1981 he joined Tilak Raj ASI alongwith other police officials. The party held a nakabandi at Naumni bridge in the area of village Bahmni. The petitioner is said to have come from the side of Jhalharra on foot at about 2.00 A.M. and he was apprehended on suspicion. On his search opium weighing 6 kgs wrapped in a glazed paper, being carried in jhola, hanging on his right hand, was recovered. Sample of 10 grams of opium was put in a separate and put in small tin. Remaining opium was put in a separate tin. Both the parcels were separately sealed with seal. TR Ruqa was sent and a case was registered. After investigation report under section 173 of the Code of Criminal Procedure was submitted and during trial the prosecution examined PW 1 ASI Harbhajan Lal, PW 2 Shri Tilak Raj ASI and affidavit of constable Bahal Singh Ex. PD was submitted in evidence and on request by the counsel for the petitioner, this PW was crossexamined. Prosecution also examined PW 4 Darbara Singh whose affidavit Ex. PE was tendered in evidence. He was also crossexamined by the counsel for the petitioner. Constable Bahal Singh, in crossexamination admitted that some objections were raised by the Chemical Examiner on 8.12.1981, and he had left the policestation on 7.12.1981 after making an entry in the Rojnamcha and on his crossexamination admitted that on 8.12.1981, there was no entry in the Rojnamcha regarding the return of constable Bahal Singh with objection on the sample of opium. He however, admitted that he directed the said constable on 9.12.1981 to make inquiries from the office of Excise and Taxation Officer and when he came back and entry in the rojnamcha was made on 9.12.1981. According to him, what was the actual objection raised by the Chemical Examiner is not mentioned anywhere. When asked about any objection with regard to tampering of seals his answer was I cannot say if the seals on the sample were tempered with or if this was the objection the testimony of this witness cannot improve the matters because dates given by PW Bahal Singh for handing over the sample to Chemical Examiner and his return in his affidavit are in addition to the above dates, 15th December and 16th December 1981 respectively. I find another affidavit of constable Bahal Singh having been tendered in evidence and exhibited with the signatures of the trial Court on 27th of July and according to this affidavit he was handed over this sample on 14th of December 981 and he handed over the same to the Chemical Examiner on 15th but brought back and gave it to MHC Darbara Singh on 16th of December 1981 and it is marked as Ex. DC. PW I Harbhajan Lal is supported by PW 2 Tilak Raj. The petitioner denied the allegations of the prosecution in his statement under section 313 of the Code of Criminal Procedure and examined one Jaswant Singh as DW I who was a Sarpanch. Testimony of this witness is not that helpful because he could not fix the date when the petitioner was said to have been taken by the policeparty from his house. The petitioner tendered copy of judgment in case Chander Kanta v. State Ex DB and Ex DA on 27th of July 1985. He also tendered in evidence Ex DC (already referred to above as the affidavit of constable Bahal Singh) Signatures of the trial Magistrate on this affidavit have been thus made her on 27th of July 1985. The trial Court convicted the petitioner under Section 9 of the Opium Act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 900/In default of payment of fine the petitioner was to undergo rigorous imprisonment for two months. The appeal of the petitioner failed and he has challenged his conviction and sentence before this Court, by way of revision. His prayer for probation was declined.

The Petitioner''s counsel has challenged the conviction and sentence with the argument that the version of the prosecution is quite improbable. He has mainly relied upon the objection raised by the Chemical Examiner for sending the sample back and argues that what objection this was can be inferred from the circumstances. The only objection which was made by the Chemical Examiner must be about the seal being not intact. Prosecution has not come forth with the actual objection raised. He has also relied upon Ex. DA which is a case regarding recovery of the 12 bore pistol from the petitioner during the same night. According to Ex. DA the learned Sessions Judge held that he had no hesitation to hold that the material on the record was deficient. In that case PW 2 Tilak Raj ASI, was also examined as PW 2. In addition ASI Jagir Singh was examined as PW I in that case. The State counsel has opposed the argument raised by the learned counsel for the petitioner.

I have considered the arguments, the prosecution version as also the statements of the witnesses. A.S I. Tilak Raj is a common witness in this case and in case covered by Ex. DA add his testimony was not considered sufficient for conviction of the presentpetitioner in that case. It is not possible to place reliance on his testimony in this case also in as much as F.I.R. Ex. PB/l makes it clear that A.S.I. Tilak Raj recovered 6 kgs opium from first search of the petitioner and again on second search he recovered .12 bore country made pistol.

The Courts below have not thought proper to place reliance on Ex. DA on the ground that witnesses in that case were different and the petitioner was acquitted on technicalgrounds. Bare reading of F.I.R. Ex. PB/1 by courts below would have led to a definite conclusion that A.S. I. Tilak Raj examined in both the case is the same person who searched the petitioner twice and made recoveries. PW I Harbhajan Lal ASI in this case and PW 1 Jagir Singh ASI in the other must be present at the time of both the recoveries. Perusal of Ex. DA makes it clear that the learned Sessions Judge disagreed with the opinion given by A.S.I. Tilak Raj and held that material on record was deficient to uphold the conviction of the petitioner in that case Thus, his testimony in this case also cannot be implicitly relied upon.

Keeping in view the observations made above, I accept this revision, set aside the conviction and sentence of the petitioner and acquit the petitioner of the charge. Fine if paid be refunded to him.

Revision allowed.