State of Punjab vs Raj Singh

J.S. Sekhon, J. (Oral)

Raj Singh accused was found in possession of one kilogram of opium on May 15, 1983 when Assistant Sub Inspector Sudarshan Singh PW 2 alongwith Head Constable Shamsher Singh and other police officials happened to accost him while patrolling on the canal bridge in the area of Bhvtal Kalan. Opium was recovered during the personal search of the accused. A sample of 10 grams was separated & sealed in at in box while rest of the opium was also sealed in other tin box. A case u/S. 9 of the Opium Act, 1878 was got registered against him through Ex.PB. The sample was sent to the Chemical Examiner, who vide his report Ex. PD confirmed it to be of opium due to the presence of morphine 42% and maconic acid therein. After completion of investigations, the accused was arranged fortrial on such like allegations.

Before the trial Court, in order to prove its above referred case, the prosecution examined Head Constable Shamsher Singh PW1 and Assistant Sub Inspector Sudharshan Singh PW2 besides tendering the report Ex. PD of the Assistant Chemical Examiner and the formal evidence of Moharrji Head Constable Gurmit Singh and Constable Rajinder Singh on affidavit Ex.PE and Ex. PF respectively. The version of the accused respondent before the trial court was that of innocence and false implication.

The trial Court disbelieving the vide police official witnesses as well as due to missing of link evidence qua the sample of opium having been retained in intact condition till it was tested by the Chemical Examiner, acquitted the accused of the charge under Section 9of the Opium Act, 1878.

The State being aggrieved against the above referred order of acquittal has come up in appeal.

We have heard the learned counsel for the parties besides perusing the record.

Admittedly, Assistant Sub Inspector Sudarshan Singh alongwith Head Constable Shamsher Singh and other police officials of Police Station, Moonak was proceeding from village Bhutal Kalan towards village Bhutal Khurd for patrolling. The patrolling by the police party obviously entails the detection of crime. Thus the police officer was expected to join same non official witnesses of the area during patrolling. But strangely enough, there is no indication from the testimony of Assistant Sub Inspector Sudarshan Singh that he had taken any steps to join any non official witnesses what to say of holding that non official witnesses happened to accost the police party specially when the party had left for patrolling from Police Station, Moonak and there would not be any dearth of non official witnesses in that village. Thus under these circumstances the trial Court rightly scanned the evidence of the police officials with a check of due caution. The damaging admission by head Constable Shamsher Singh PW 1 during cross examination that the statement of Constable Paramjit Singh was recorded in the area of village Bhutal Khurd although this witness happens to be an attesting witness of seizure memo Ex. PA creates a doubt about the recovery of opium having been effected from the personal search of the accused in the area of village Bhuttal Kalan because there is no explanation at all as to why the statement of Constable Paramjit Singh an attesting witness of the seizure memo could not be recorded at the spot itself.

The matter does not rest here as according to Assistant Sub Inspector Sudharshan Singh he had deposited the case property with Moharrir Head Constable Gurmit Singh No. 1368 but the affidavit has been filed by Head Constable Gurmit Singh No. 1348. There is no explanation on the file that there was only one Head Constable Gurmit Singh at the police station. Under these circumstances, the trial Court rightly used this infirmity in the case of the prosecution in the order to conclude that the prosecution has failed to establish that the sample of opium was kept in intact condition till it was tested by the Chemical Examiner.

Consequently, for the reasons recorded above, we find no merit in this appeal against acquittal. It is ordered to be dismissed.