State of Haryana vs Raghuraj

A.S. Nehra, J.

This appeal is directed against the judgment passed by the Additional Sessions Judge, Karnal, on 4.7.1986, by which the respondent has been acquitted of the charge under section'' 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Briefly stated, the facts of the case are that on 25.12.1985, a police party consisting of ASI Zile Singh, ASI Hukam Chand and Constables Ram Phal and Balraj, was present on the Red Light Chowk, Panipat. The police party reached near the cremation ground after patrolling the area. From the side of the Railway Station, the respondent was seen coming. He was carrying a plastic bag in his right hand. He tried to evade the police. He was apprehended on suspicion. The bag, which was being carried by the respondent, was searched and it was found to contain 1250 grams of opium. The opium had been kept in that bag after having been wrapped in a wax paper over which a shirt had been wrapped. Since the respondent was not having any permit or licence for the possession of the opium 50 grams of opium was taken out a sample which was realed and the remaining quantity was sealed in a parcel Exhibit P3 The seal, after use, was given to AST Hukam Chand. The sealed sample, bag Exhibit P1, 1, shirt Exhibit P2 and sealed parcel Exhibit P3 were taken into possession, vide recovery memo Exhibit PC. A ruqa, Exhibit PA, as sent to the police station. City Panipat on the basis of which, formal FIR Exhibit PA/1 was recorded. Report Exhibit PE opining that the sample contained opium was received.

To prove its case against respondent, the prosecution has examinedASI Zile Singh PW3 and ASI Hukam Chand PW4. Formal witnesses. Inspector Sada Ram PW1 and ASI Yad Ram PW2 were also examined. Ram Phal was given up as unnecessary. Affidavits Exhibits PB and PB/1 of MHC Bhale Ram and Constable Sunder Lal respectively, were also placed on the record. After the prosecution evidence had been concluded, the respondent was examined under section 313, Code of Criminal Procewherein he denied the allegations against him and alleged false implication.

The learned counsel for the appellant State argued that the prosecution has proved its case beyond doubt and the learned trial Judge has erred in law in acquitting the respondent.

It is on record that the recovery was allegedly effected from the respondent at the place frequented by numerous persons and even when the Police party moved from the police station for the place of recovery. a number of persons had met it. Nobody was joined by the police party in the investigating of this case. Nobody was joined even after the police party saw the respondent and apprehended him. The prosecution case rests on the testimony of police officials, who are interested in the success of the case.

No doubt, conviction of the respondent can be based on the testimony of the police officials, but prudence requires that such testimony should be corroborated by independent evidence. It is not a case where independent witnesses were not available, but it is a case where independent witnesses were available but they were not joined by the police deliberately. This circumstance in itself introduces an element of doubt in the prosecution case.

Even the testimony of police officials. i.e., ASI Zile Singh PW3 and ASI Hukam Chand PW4 is discrepant on material points. About Constable Balraj. who had been sent with ruqaExhibit PA, AS] Zile Singh PW3 stated that the constable was sent at 4.40 pm from the spot and that he returned after about two hours. ASI Hukam Chand PW4, when questioned about it, stated that the constable, who had been sent with the ruqa, returned at 5:40 pm. Regarding the existence of shops etc. near the place of recovery, AS[ Zile Singh PW3 has stated that there were no Dhabas and shops near the place of recovery and shops were at a distance of 100 yards from the place of recovery. These were teastalls, cyclerepair shops, electric shops etc. Hukam Chand PW4 has stated. That there were no shops on the left or right side of the place of recovery; that there was a sawmill at the place of recovery at a distance of 1520 yards; and that there was no other shop nearby.

Regarding the return of and scale to the person from whom constable Ram Phal had brought them. Zile Singh PW3 stated that these had been returned to that shopkeeper through the constable and, that is why, he could not tell the name of the person from whom the weights and scale were arranged. ASI Hukam Chand PW4 stated that the weights and scale had been returned while the police party was returning from the place of recovery, meaning thereby that the police party knew the person from whom the weights and scale had been arranged by Constable Ram Phal but even then the name of that shopkeeper has not been mentioned at all. It is on the record that it takes about one hour from the place of recovery to reach the police station. According to ASI Zile Singh PW3, the ruqa was sent at 4.40 pm and thereby the FIR, in the normal course of events, should have been, recorded at about 5:40 pm but it is strange that the FIR in the police station was recorded at 4.40 pm itself.

Site plan Exhibit PD, which is available on the file, does not show any turn or curve on the road and if the respondent had been in possession of incriminating substance, he would have never come near the police party and would have made good his escape while he was away from the police party.

All these discrepancies show that the prosecution witnesses have rendered themselves unworthy of credence.

In view of the abovementioned discussion, we, find no merit in the appeal and the same is dismissed.