Sohan Lal vs State of Punjab

A P. Chowdhri, J.

This revision is directed against the judgment of the Additional Sessions Judge, Bhatinda, dismissing the petitioners appeal against his conviction and sentence under section 9 of the Opium Act recorded by the learned Chief Judicial Magistrate, Bhatinda.

The prosecution case is that on May 18, 1981, a police party, led by ASI Dina Nath was on patrol. Secret information was received at Bus Adda, Bhatinda. The police party proceeded towards the house of the accused in Ganesha Basti and on the way joined Chand Ram PW. The accused was On search 7 kgs. of opium wrapped in a glazed paper was recovered from the bag. 20 grams of opium was taken out as sample. The sample and the remaining opium were duly sealed and recovery memo prepared. The present case was registered on a ruqa sent from the spot. The prosecution examined Gurdev Singh and Swaranjit Singh in support of its case, ASI, Dina Nath, who investigated the case, having died in the meanwhile.

The plea of the accused was one of denial and false implication. He examined Chand Ram in defence. The accused also produced certified copies of judgment/statements Exs. D1 to D19 to show that Chand Ram was a stock witness of the police.

The learned Chief Judicial Magistrate accepted the prosecution version and convicted and sentenced the petitioner to rigorous imprisonment for two years and a fine of Rs. 500/ and to a further RI for three months in default of payment of fine, by judgment and order dated April 15, 1985. In appeal, which was dismissed by the learned Additional Sessions Judge, by order dated July 9, 1985, the conviction was affirmed but imprisonment was reduced to one year, maintaining the sentence of fine imposed by the trial Court.

The contention of Mr. G. S. Doad, learned counsel for the petitioner, is that joining of a rank stock witness like Chand Ram in the investigation of the case rendered the prosecution case highly suspect. He also submitted that Swaranjit Singh had not witnessed the recovery as made out from his statement recorded under section 61 of the Code of Criminal Procedure and the prosecution could not use his testimony to corroborate the evidence of Gurdev Singh.

I have given anxious consideration to the submissions of the learned counsel.

From the evidence on record comprising of certified copies of Exhibits D1 to D19, there is no manner of doubt left that Chand Ram alias Chand Singh was a stock witness. In Dood Nath Pandey v State of UP., AIR 198, SC 911, it was held by the apex Court that even the recovery is rendered bad if it is witnessed by a witness who had already deposed in seven different cases in favour of the prosecution and was evidently at beck and call of the police. This is more so when the police had prior intimation that the accused was in possession of contraband opium. No record which may have been contemporaneously prepared shows that any effort was made to join an independent witness to be present when the police party headed towards the house of the accused. Going by the version of the prosecution itself, the police could not anticipate that on its arrival the accused would emerge from his house holding a bag in his hand containing opium and in a dramatic fashion the police party will nab the accused and recover the opium from him. What was reasonably expected was that the police would search the house of the accused and try to find out whether the secret information was correct. Search of the accused would statutorily require two or more independent and respectable inhabitants of the locality to attend and witness the search as required under section 100(4) of the Code of Criminal Procedure. Instead of taking action on the expected lines, as stated above, the police is stated to have joined Chand Ram, who appears to be willing to oblige the police in any manner and to any extent. This has rendered the entire exercise open to grave doubt.

For the foregoing reasons, I am of the view that the petitioner is entitled to benefit of doubt. I, therefore, allow the revision petition, set aside the conviction and sentence and acquit the accused. The fine if paid, shall be refunded.