State of Punjab vs Jasbir Singh @ Jassi

J.S. Sekhon, J.

On 3rd of April, 1985, SubInspector Brij Mohan Sarup, Incharge of Police Station Nihal Singh Wala, on the basis of credible secret information while patrolling in the area of village Jawahar Singh Wala, early in the morning regarding the involvement of Jasbir Singh, accused respondent in the sale of opium despatched a ruqa, Exhibit PA to the Police Station at 4.40 a.m. through Gurcharn Singh Constable for registration of the case under Section 9 of the Opium Act, 1878. Thereafter, he alongwith other police officials after joining Munim Singh witness from village Patto Hira Singh raided the house of Jasbir Singh accused located in the latter''s village. The accused was found present there. On interrogation, the accused disclosed vide statement, Exhibit PB, having kept concealed opium after wrapping in a glazed paper under a heap of chaff lying in the kotha of his house meant for storing chaff etc. The accused then led the policy party and got recovered the opium wrapped in a glazed paper from inside the kotha and out of it, ten grams of opium was separated and sealed as a sample and the remaining opium was sealed in a different tin box. All these articles were taken into possession vide memo Exhibit PC. The SubInspector also prepared rough site plan, Exhibit PD of the spot, besides recording the statements of the witnesses. The sample of the opium was sent to the Chemical Examiner, who vide his report, Exhibit PG, confirmed it to be of opium due to the presence of morphine and meconin acid therein. After completion of the investigation the accused was arraing for trial on such like allegations.

Before the trial Court in order to prove its above referred case, the prosecution examined SubInspector Brij Mohan Sarup (PW 1) and Constable Shinder Pal Singh (PW 3) as witnesses to the disclosure statement and the recovery. The formal evidence of Constable Rukwinder Singh and Hawaldar Mehama Singh was tendered on affidavits Exhibits PE and PF respectively. Rukwinder Singh, Constable, was allowed to be crossexamined as PW 2 on the request of the defence. The report Exhibit PG of the Assistant Chemical Examiner was also tendered in evidence. Munim Singh the only non official witness was given up as having been won over by the accused.

The version of the accused before the trial Court was that of innocence and false implication. In defence, he examined aforesaid Munim Singh as DW 1, who supported the version of the accused that the opium was not recovered from the possession of the accused in his presence. The trial Court, however,under the circumstances of the case holding that the discrepant evidence of the official witnesses was unreliable as well as keeping in view that it was a case of misuse of the provisions of Section 27 of the Indian Evidence Act as the ordinary recovery has been depicted as discovery, acquitted the accused respondent on the above referred charge under Section 9 of the Opium Act.

Feeling aggrieved against the above referred order of acquittal of the trial Court, the State has come up in appeal. Leave to appeal was granted by the Division Bench of this Court and the appeal was admitted.

We have heard the learned counsel for the parties, besides pursuing the record.

No doubt, the evidence of the official witnesses cannot be discarded solely on the ground of their status as such unless it fails to the test of reliability. In the case in hand, the trial Court has discussed the discrepant evidence of the official witnesses in para 11 of the judgment, as under :

"In addition, S.I. Brij Mohan Sarup (PW 1) and Constable Shinder Pal Singh (PW 3) have stated differently on four vital points. Firstly, according to the crossexamination of the SubInspector, the caused was interrogated for ten minutes and then he suffered the disclosure statement but, on the other hand, it is to be noticed from the crossexamination of the constable that the accused was interrogated for 20/25 minutes and then he gave the disclosure statement. Secondly, as per crossexamination of the SubInspector, no person other than the accused was in his house but he is recanted on this point by the constable, who, under the stress of crossexamination, asserted that the wife and children of the accused were also present in the house. Thirdly, it is in the crossexamination of the SubInspector that the opium was recovered after removal of half bundle of wheat chaff while, on the contrary, it to be noticed from the crossexamination of the constable that the opium was recovered after removal of 2/3 bundles of wheat chaff. Fourthly, the SubInspector, on being crossexamined, asserted that the constable entrusted with the ruqa left on foot and came back to the spot on foot. All the above pointed out discrepancies are, in my opinion material and inexplicable and assume greater significance when the case hinges on the testimony of two police officials who are obviously interested in its success because they claimed to have worked it out during investigation. In the ultimate analysis these inconsistencies have the effect of rendering the prosecution version gravely suspicious."

A bare glance through the same leaves no doubt that according to the SubInspector, no other person than the accused was present in his house at the time of disclosure statement and recovery but according to Constable Shinderpal Singh, the wife and children of the accused were present there. Thus, apart from the minor discrepancies discussed by the trial Court reproduced above,the above discrepancy in their testimony is sufficient to reasonably infer that the recovery of the opium was not effected in the manner as depicted by these two eyes witnesses.

The matter does not rest here as the trial Court rightly held to be a case of the misuse of the provisions of Section 27 of the Evidence Act, because on the basis of secret information, the SubInspector was bound to effect the general search of the house of the accused and recover the opium. It is note worthy that usually incriminating articles are kept concealed in the chaff or stacks of the grain by the cultivators in the village. Consequently, it is a clear case of showing the recovery of opium as discovery obviously in order to prove its exclusive and conscious possession by the accused.

For the foregoing reasons, we find no justification in interfering with the wellfounded order of acquittal of the trial Court. Hence, the appeal against acquittal preferred by the State fails and is hereby dismissed.