Sudesh Kumar vs The State of Punjab

S.S. Dewan, J.—Sudesh Kumar petitioner stands convicted u/s 9 of the Opium Act for being in possession of ten kilograms of opium and sentenced to one year and 3 months rigorous imprisoment and a fine of Rs. 1000/-. On appeal, the learned Additional Sessions Judge, Faridkot, not only maintained his conviction but affirmed his sentence. He has now come up in revision.

The facts giving rise to this petition are very few and simple. On July 9, 1977 at about 4 a.m., the raiding party led by Sub-Inspector Harnek Singh, Station House Officer, Kot Bhai held picketing on the canal bridge falling in between villages Manianwala and Khunan. Assistant Sub-Inspector Gurbachan Singh and other police officials were also members of the picketing party. Naranjan Singh Ex-Sarpanch and Pachan Singh were also joined on the way while going to the place of picketing In the meantime Sudesh Kumar petitioner came that way from the side of village Khunan riding a scooter. He was intercepted and the search of his scooter resulted in the recovery of 10 kgs. of opium from a basket fitted with it. After necessary formalities, a sample was sent to the Chemical Examiner, who found the same to be of opium. After necessary investigation, the petitioner was challaned, convictied and sentenced as indicated above.

It has been argued of behalf on the petitioner that the prosecution has failed to establish that the sample examined by the Chemical Examiner had not been tampered with before it reached his hand. On the strength of the Supreme Court decision reported as The State of Rajasthan Vs. Daulat Ram, the learned counsel for the petitioner has argued that the link evidence in this regard not being complete, the petitioner deserves to be acquitted. The learned counsel referred me to the statement of Constable Jagir Singh, who is stated to have been given the sample packet by the Moharrir Head Constable, Police Station Kot Bhai, for onward transmission to the Chemical Examiner, for analysis. Constable Jagir Singh, P.W. 5, stated on oath that on July 29, 1977, he remained at Kot Kapura and kept the sample with the Moharrir Head Constable. The Moharrir Head Constable of Police Station Kot Kapura was not examined by the prosecution to prove that while in his custody, the seales of the sample were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being tampered with during this period, a fact which had to be proved affirmatively by the prosecution. The learned counsel is thus correct in his saying that the prosecution has not proved that right from the stage of the seizure of the opium upto the time when the sample was handed over to the Chemical Examiner, the seals remained intact. In the circumstances, link evidence not being complete, the petitioner has to be acquitted following the ratio of Daulat Ram''s case, (supra).

For the reasons aforementioned, the revision petition is allowed and the petitioner is acquitted of the charge. The fine, if paid, shall be refunded to the petioner.