Sukhdev Singh vs State of Punjab

Surinder Singh, J.—This is a Revision Petition filed by Sukhdev Singh son of Buta Singh aged 45 years who was convicted by the SubDivisional Judicial Magistrate, Phul under Section 9 of the Opium Act and was sentenced to three years Rigorous Imprisonment and fine of Rs. 4000/ in default of payment of fine to undergo further simple imprisonment for six months. The petitioner filed an appeal against his conviction and sentenced aforesaid which was dismissed by the Sessions Judge, Bhatinda, vide judgment dated January 21, 1984 though the sentence was reduced to R.I. for two years. The present Revision Petition is directed against the said decision.

In brief, the prosecution version is to the effect that on April 10,1978 a Police Party headed by Deputy Superintendent of Police Baldev Singh (P.W.3) was returning to Phul in a Jeep after some meeting in the Rest House. When the party reached on the bridge of the canal minor in the area of Mandi Rampura, the petitioner, it is stated, was seen coming on a mare carrying a gunny bag in front of him. The petitioner was stopped by Sub Inspector Swaran Singh (P.W.2) on suspicion. It is further alleged that on a search made by the Deputy Superintendent of Police, the gunny bag was found to contain 30 Kgs. of Opium wrapped in a glazed paper. A sample of the article was obtained and the same was taken into possession. The remaining opium was placed in two tin canisters Exhibits P.1 and P.2 which were sealed into parcels. The petitioner was taken into custody and the case was registered against him under the Opium Act. The sample on being sent for analysis was opined to be that of opium. As a result of his prosecution, and trial, the petitioner was convicted and sentenced as already noticed.

The learned counsel for the petitioner has referred to various circumstances relied upon by the prosecution to connect the petitioner with the crime. It is, however, contended that a solitary circumstance in the present cast is sufficient to case a serious doubt in regard to the prosecution version. According to the testimony of Deputy Superintendent of Police Baldev Singh, the petitioner was arrested on April 10, 1978 in a chance meeting at the bridge of the canal minor. The time of this meeting is neither mentioned in the testimony of the alleged eyewitness, nor has been put to the petitioner in his examination under section 313, Code of Criminal Procedure. As against this the version of the petitioner right from the earliest opportunity at the trial is that he had been arrested from Bus Stand Rampura, Mandi at about 5.30 p.m. on April 9,1978 by the Police Station Balianwali in presence of Avtar Singh Sarpanch, Rampura who had been reduced as D.W. 1. This specific suggestion was put to the prosecution witnesses also, though the same was denied by them. The petitioner, however, relied upon documentary evidence in this behalf in the shape of two copies of the telegram Exhibits D 1 and D 2 sent by Avtar Singh Sarpanch aforesaid. One of the telegrams was addressed to the Sessions Judge, Bhatinda and the other to the Chief Justice of this Court as also to the Inspector General of Police, Punjab, Chandigarh. In these telegrams, it is recited as follows :

"My relative Sukhdev Singh son of Buta Singh Village Dikh arrested by Police of Batianwali district Bhatinda in my presence and Sarpanch Gurbachan Singh of Mandiakalan at Bus Stand of Rampura Phul at 1730 p.m. Perhaps false case may be fabricated against him.

S/d Avtar Singh

Sarpanch, Village Rampura."

The copies of the telegrams have certified to be true copies by the SubPostmaster of Post Office Rampura Phul, under his official stamp. The authenticity of these telegrams cannot, therefore be disputed. It is, therefore, obvious that in case these telegrams are accepted as genuine documents, there is a grave doubt in regard to the arrest of the petitioner having been made on April 10, 1978 as claimed by the prosecution. It appears that the Courts below have not given due importance to this circumstance while considering the culpability or otherwise of the petitioner. In so far as the trial Court is concerned, this matter was disposed of with the following observations :

"These telegrams were sent to the learned District & Sessions Judge, Bhatinda, and Hon''ble Chief Justice of Punjab and Haryana High Court, at Chandigarh, against the S.H.O of P.S. Balianwali, but the recovery in this case was effected by S. Baldev Singh PW.2, the then S.H.O. of P.S. Phul and Lakhbir Singh, District Excise Inspector. It appears as if the said telegrams were got issued by the accused with a view to forestall the attempt of his apprehension by the Police. Therefore, the issuance of the said telegrams, before hand, fails inspite my confidence and consequently, the contention of the learned defence counsel is repelled."

The above is an absolutely erroneous approach to the matter. It is not possible to understand as to how at the time of the despatch of these telegrams on April 9, 1978, the petitioner was aware of the fact that on the next day, i.e. April 10, 1978 he would be apprehended by the Police in a chance meeting at the bridge of the canal minor as is the case of the prosecution.

The point referred to above was also urged before the Appellate Court, i.e. Sessions Judge, who disposed of the same with the following observations :

"The argument is devoid of any merit. Certified copies of the draft of the telegrams (Exhibit D 1 and D 2) do indicate that Avtar Singh Sarpanch, D W 1 who admittedly is related to the appellant had sent telegrams to various authorities about the arrest of Sukhdev Singh appellant in his presence and, that of Gurbachan Singh, Sarpanch of Mandi Kalan who incidentally has not been produced in defence in this case. Perusal of the said telegrams, however, does not in any manner indicate that Shri Baldev Singh, DSP or Hukam Singh, his brother''s soninlaw was any manner, inimically disposed towards the appellant. It seems that the aforesaid telegrams were sent to the authorities concerned to forestall subsequent arrest and recovery of the opium, or other contraband articles from the possession of the appellant."

It appears that, the learned Sessions Judge merely followed the path treaded by the trial Court without applying his mind to the important circumstance relied upon by the petitioner in his defence. Even if Avtar Singh Sarpanch is related to the petitioner, it has not been explained as to how he could be aware at the time of sending the telegrams about the arrest of the petitioner on the next day. The apprehension of the petitioner in the circumstances as alleged by the prosecution is, thus, surrounded by serious doubts which have not been removed by the prosecution. The benefit of these doubts must, therefore, go to the petitioner.

The learned counsel for the petitioner has also made a submission in regard to the correctness of the decision of the Courts below on the question as to whether the petitioner was entitled to send a part of the recovered opium for reexamination. This matter has, however, been decided first by a Division Bench in Joginder Kaur v. The State of Punjab, 1979 Chandigarh Law Reporter (Punjab and Haryana) 101 and later by another Division Bench in Criminal Revision No. 1083 of 1980 decided on July 12, 1982 to which I was also a party. The case arose out of an interim order passed by the trial Court in this very matter. A copy of the judgment in that case is forthcoming on record of the present case. In any case, in view of the point already discussed, there is no need to consider this matter over again.

The result is that this Revision Petition is allowed and the conviction of the petitioner as also the sentence imposed upon him by the Courts below are set aside. The petitioner is afforded the benefit of doubt as discussed above and is acquitted of the charge framed against him. He is on bail. His bail bond stands discharged. The fine, if paid by the petitioner shall be refunded to him.