State of Punjab vs Piara Singh

A. S. Nehra, J.

This appeal is directed against the judgment dated 141987 passed by the Judicial Magistrate 1st Class, Hoshiarpur, by which the respondent has been acquitted of the charge under Section 9 of the Opium Act, 1878.

The prosecution case, briefly stated, is that on 2571985 ASI Tarsem Singh PW2, who was then posted at police Station, Mahilpur, along with Constable Laskar Singh PW1 and other police officials, was proceeding from Mahilpur towards Barian and Behowal for patrolling the area and, on the way, he associated with him Mohan Singh Lambardar. When the police party reached near the road turning leading to village Behowal, the respondent was spotted, who on seeing the police, attempted to slip away but he was apprehended. His personal search lead to the recovery of gunny bag Exhibit P1l which was found to contain 10 kgs. of poppy husk. Out of it, a sample of 250 grams was separated. The sample and the residue bulk of poppy husk in the small gunny bag were turned into parcels which were duly sealed with the seal of Assistant SubInspector, bearing letters `TS'', and taken into possession, vide recovery memo Exhibit RA. Information was sent to the concerned police station through ruqa Exhibit P2 on the basis of which, formal FIR Exhibit PB/1 was registered at Police Station, Mahilpur.

The Assistant Chemical Examiner to Government, Punjab, Chandigarh, on analysis of the substance in the sample parcel, drawn out of the bulk allegedly recovered from the respondent, found it to be poppy husk, by virtue of his report Exhibit PD.

The prosecution, in order to connect the respondent with the offence, examined Constable Lashkar Singh PW1 and ASI Tarsem Singh PW2, both of whom are the witnesses of recovery and they supported the prosecution version. Report Exhibit PD of the Assistant Chemical Examiner and affidavits PE and PF of MHC Dial Singh and Constable Kartar Singh respectively were tendered in evidence. However; Constable Tilak Raj PW was given up as unnecessary, while Mohan Singh Lambardar was given up by the prosecution on the ground of having been won over by the respondent.

At the close of the prosecution evidence, the respondent, on being examined under Section 313, Code of Criminal Procedure, disowned the incriminating circumstances appearing in evidence against him and asserted his innocence. His plea is that of complete denial and false implication.

The fate of this case rests on the testimony of Constable Lashkar Singh PW1 and ASI Tarsem Singh PW2. No doubt, they have corroborated the recovery of gunny bag Exhibit P1 containing 10 kgs. of poppy husk effected from the respondent on 2571985 during the course of their patrol duty near the road turning leading to village Behowal, but the real question is, as to how far, reliance can be placed on their evidence bearing in mind the rule of caution applicable to the assessment of evidence of police witnesses in a case of recovery of an incriminating article, as also being fully mindful of the fact that they are not to be discredited because of their official status, we have considered and analysed the evidence rendered by the above mentioned two prosecution witnesses and find that their evidence is infirm and insufficient to record conviction of the respondent mainly for reasons enumerated hereinafter.

The first point that attracts the attention of the Court is failure of the prosecution to examine the only independent nonofficial witness, namely, Mohan Singh Lambardar, who was associated with the police patty before effecting the recovery from the respondent. He was with held by the prosecution on the ground that he has been won over by the respondent. This allegation of the prosecution can, in no way, be accepted to be conclusive of the fact that he was actually won over by the respondent. That being so, the legitimate inference that can be drawn is that had he appeared in the witnessbox, he would not have supported the prosecution version. In this view of the matter, his nonexamination has, to our mind, caused a dent in the prosecution case. That apart, Constable Lashkar Singh PW1 and ASI Parsem Singh PW2 have made discrepant statements on two vital points. First, according to the cross examination of Constable Lashkar Singh PW1, some public men had passed from near the spot at the time of the recovery and none of them joined the police party. PW1 is contradicted on this point by the Assistant Sub Inspector who, under the stress of cross examination, stated that no public man had passed from near the road at the time of apprehension of the respondent and that people started passing from the spot after the recovery. Secondly, as per crossexamination of Constable Lashkar Singh PW1. poppy husk was weighed 78 times but he is contradicted on this point by the Assistant SubInspector Tarsem Singh PW2 who, on being questioned in crossexamination, testified that after drawing out the sample, the poppy husk was weighed 10 times. Both these discrepancies are in our opinion, material and assume greater significance when the case rests on the testimony of two police officials who are obviously interested in its success. In the ultimate anylsis, these inconsistencies have effect of rendering the prosecution version gravely suspicious.

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