Satish Kumar vs State of Punjab

S.S. Grewal, J.

Satish Kumar petitioner was convicted under Section 9 of the Opium Act, 1878 and under Section 14 of the Dangerous Drugs Act, 1930, by Judicial Magistrate Ist Class, Jagraon, vide his order dated 31.8.1987, for keeping in possession 31/2 kgs. of opium and 30 grams of heroin. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1500/. In default thereof he was further ordered to undergo rigorous imprisonment for six months for commission of offence under Section 9 of the Opium Act, 1878. Concerning commission of offence under Section 14 of the Dangerous Drugs Act, 1930, he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/. In default of payment of fine he was ordered to undergo rigorous imprisonment for two months. Both the substantive sentences of imprisonment were ordered to run concurrently.

On appeal, the Additional Sessions Judge, Ludhiana, vide his order dated 13.7.1989 upheld the order of conviction and sentence passed by the trial Court and dismissed the appeal. Aggrieved by the order of conviction and sentence passed by the Courts below Satish Kumar has filed the present revisionpetition.

Briefly stated, facts of the prosecution case are that on 30.9.1984 S.I. Amarjit Singh received secret information that heavy quantity of contraband articles like opium, heroin and charas could be recovered from the possession of the petitioner, if a raid is conducted at his house. On the basis of the said secret information, formal FIR was recorded in the police station. Thereafter, S.I. Amarjit Singh along with A.S.I. Gurnam Singh, H.C. Lakhwinder Singh, Constables Paramjit Singh, Harbans Singh, Surinder Singh and Charanjit Singh started for the house of the petitioner to conduct a raid. Kewal Krishan and Ghamand Singh two nonofficial witnesses were also joined in the raiding party. When the police party reached near the house of the petitioner, he was just coming out of his house at that time. On suspicion he was apprehended and from his personal search 31/2 kgs. of opium wrapped in a glazed paper was recovered from a bag (Jhola) carried by the petitioner. 10 grams of opium was taken out as sample. Both the sample and the remaining opium were separately sealed with the seal of S.I. Amarjit Singh and the same were taken into possession through the seizure memo. During the investigation of the said case the petitioner while in police custody, made disclosure statement, in pursuance of which he got recovered 30 grams of heroin wrapped in a glazed paper from a cardboard box lying his shop, near bus stand Raikot. 5 grams of heroin was drawn as sample. Both the sample and the remaining heroin were sealed into two separate parcels, and the same were taken into possession through a seizure memo. After completion of the investigation and on receipt of the report of the Chemical Examiner, petitioner was challaned, tried, convicted and sentenced as detailed above.

The main grievance of the petitioner is that Kewal Krishan the only independent witness produced by the prosecution in the instant case was inimical towards him. The petitioner appeared as a witness against Kewal Krishan PW in the present case, in an enquiry conducted against him by NaibTehsildar, Raikot, on the complaint made by the present petitioner to the Deputy Commissioner, Ludhiana, that Kewal Krishan aforesaid was illegally running a touring talkies as well as holding vide, shows at Raikot, Kewal Krishan PW while appearing as PW1 denied this fact which however, has been duly proved on the record from the testimony of Majoj Kumar DW working as Steno in the office of Sub Divisional Officer (Civil) Jagraon. This aspect of the case clearly shows that Kewal Krishan is not an independent or wholly reliable witness.

The only other evidence relating to the recovery of opium from near the house of the petitioner and later on heroin from inside the shop of the petitioner is that of S.I. Amarjit Singh, who obviously has not taken due care and caution in associating two independent witnesses from the locality. After the petitioner had been arrested and recovery of opium had been effected from him, certainly, there was sufficient time for S.I. Amarjit Singh to associate two independent witnesses with him before he went and recovered heroin from the shop in possession of the petitioner. In these circumstances, it would be prudent to seek independent corroboration before relying upon the testimony of S.I. Amarjit Singh on salient features of the prosecution story.

Besides, there are material contradictions in the testimony of two witnesses produced by the prosecution. According to Kewal Krishan PW recovery of heroin was affected from the shop of the accused situated at Talwandi Road, whereas, according to S.I. Amarjit Singh that shop is situated on RaikotLudhiana Road. Kewal Krishan also stated that Talwandi Road and Ludhiana Raikot road are two different roads. According to Kewal Krishan there is a blind alley near the house of the accused whereas, according to S.I. Amarjit Singh the street near the house of the petitioner is a regular one. These material contradictions relate to the two alleged places of recovery and casts grave doubt about the veracity of the two recovery witnesses produced by the prosecution.

Another aspect of the case is that there is no entry in register No. 19 at all regarding deposit of sample of opium and heroin said to have been taken by the Investigating Officer in this case. Bare explanation furnished by S.I. Amarjit Singh in his testimony during trial that he handed over the said parcels to AMHC Nazar Singh would hardly be of any consequence. Apart from that it is significant to note that affidavit of AMHC Nazar Singh to the effect that he received, samples of opium as well as of heroin, recovered in this case, with seals intact from the Investigating Officer on the date of recovery, or subsequently handed over the same in same condition to constable Balbir Singh on 29.1.1985, or the affidavit of Constable Balbir Singh in this regard as well as handing over those samples with seals intact in the office of the Chemical Examiner, at Patiala, were not properly verified. The said verification is not in accordance with the provisions of Section 297 of the Code of Criminal Procedure, 1973, nor the same fulfills the requirements contained in Chapter 12B of Volume IV of the High Court Rules and orders. In verification of these affidavits, it has not been specifically mentioned by the deponents, as to which part of his statement is based on his personal knowledge and as to which other part of his affidavit is based on his information. In view of the infirmity in the verification referred to above, the said affidavits cannot be legally read in evidence. The link evidence in this case relating to deposit, on sending the samples of contraband articles is incomplete. I am supported on this point by Single Bench authority of this court in Harjeet Singh v. The State of Haryana, 1988(1) C.L.R. 81 : 1987(2) Recent Criminal Reports 217 , as well as Division Bench authority of this Court in State of Punjab v. Partap Singh, 1978 CLR (P&H) 83.

For the foregoing reasons, prosecution has failed to bring home the charge against the petitioner beyond reasonable doubt. I hereby set aside the order of conviction and sentence passed against the petitioner by the Courts below and giving him benefit of doubt, he is hereby acquitted. This revision petition is according accepted. Fine, if paid, be refunded to the petitioner.