Sees vs State of Punjab

V.S. Aggarwal, J. (Oral)

This is an appeal filed by Sees son of Nandu (hereinafter described as the appellant) directed against the judgment and order of sentence dated 4.1.1993 passed by learned Additional Sessions Judge, Jalandhar. By virtue of the impugned judgment and order of sentence, learned trial Court held the appellant guilty of the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter described as the Act). The appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh. In default of payment of fine, he was to undergo further rigorous imprisonment for 21/2 years.

On 15.1.1989, Sub Inspector Jagir Singh accompanied by Head Constable Amarjit Singh and 2 Constables namely Satnam Singh and Rakesh Kumar were present at the turning of Village Langeri. Secret information was received that the appellant is in the habit of selling poppy husk and often in possession of the same. On this information, Ruqa was sent to the police station and formal F.I.R. was recorded.

Sub Inspector Jagir Singh proceeded to the village of the appellant. On his way, Gurdip Singh Sarpanch, Village Langeri met him. He was joined in the raiding party. Accompanied by Jagir Singh and other official members already named above, they went to the house of the appellant. The appellant on seeing the police party escaped. Search of the house of appellant was conducted in presence of Gurdip Singh, Sarpanch. 14 bags of poppy husk were found lying in one room in the house of the appellant. Bags were weighed. Each bag contained 39 kgs. of poppy husk. 250 gms. was taken as sample from each bag. The samples and the bags were converted into different parcels and sealed with the seal of ''JS''. The seal after use was given to Head Constable Amarjit Singh. All these articles were taken into possession vide a recovery memo.

Jagir Singh prepared a site plan and deposited the samples and rest of poppy husk in the Malkhana. Subsequently the samples were sent to the Chemical Examiner. On receipt of the report that the contents were poppy husk, challan against the appellant was filed.

Learned trial court on appraisal of the evidence concluded that it has been established that recovery was effected from the house of the appellant, who was in occupation of the same. The plea of the appellant to the contrary that two public witnesses of the locality have not been joined or that the appellant was arrested after an inordinate delay, were repelled. Concluding that the prosecution has been able to prove its case against the appellant beyond all reasonable doubts the impugned judgment and order of sentence already mentioned above, were passed.

More often than once, it has been insisted that independent public witnesses should be joined whenever the house search as such has to be effected. If they are not joined then plausible explanation should be forthcoming for nonjoinder of the public witnesses. There can be cases where public witnesses are not available or not willing to join. It depends on facts and circumstances of each individual case.

In the present case, it is asserted that Sarpanch of the village (Langeri) had been joined, but during the course of trial, he was not examined as a witness. On 28.2.1992, the learned Additional Public Prosecutor had made a statement in the trial Court that the said Sarpanch of village Langeri has been won over and therefore he was given up as a witness. This left the Court with testimonies of 2 official witnesses i.e. Constable Satnam Singh, PW1 and Sub Inspector Jagir Singh PW2. Their testimonies were assailed on the ground that they are official witnesses interested in the success of the case. Once again while appreciating the testimony of the witness it has to be remembered that the evidence as such cannot be discarded merely on the ground that he is an official witness. In the present case, however, it transpires in the evidence on record that after the alleged recovery and sample having been taken, the seal after use was given to Head Constable Amarjit Singh. It is any body''s guess to assume or presume as to why it was not handed over to the public witness. Could it be that the alleged public witness Gurdip Singh was not present ? The doubt would loom large. In this regard, once it is concluded that the public witness was in fact not there, in that event, even the testimonies of official witnesses who insisted that they had tried to comply with the statutory provisions of Section 104 Code of Criminal Procedure cannot be taken to be truthful. On the face of it, a doubt would arise as to the recovery to be genuine or not.

In addition to that, it is alleged that recovery was effected from the house of the appellant and that the appellant was in exclusive possession of the articles recovered namely poppy husk. When Jagir Singh appeared as PW 2 it was suggested to him that the appellant along with his married son and marriageable daughters were living together. He denied the suggestion. Bhag Singh, DW1 on the contrary deposed that there are 5 other members in the family of the appellant which includes 2 sons, 2 daughters besides his mother. What prompts this court to believe that appellant was not in exclusive possession of the house from where the alleged recovery was effected, is the fact that it has never been the case of the prosecution that the appellant was the sole person living in the said house. It appears that there are other members of the family of the appellant also living with him and in that event it cannot be taken that the recovery was effected from the exclusive possession of the appellant. In face of the aforesaid, it cannot be concluded that the prosecution has proved its case beyond all reasonable doubts. The judgment and order of sentence passed by the trial Court, therefore, cannot be sustained.

For the reasons, recorded above, I accept the appeal and set aside the judgment and order of sentence passed by the learned Additional Sessions Judge, Jalandhar.