Surjit Singh vs State of Punjab

V.S. Aggarwal, J.

The present petition has been filed by Surjit Singh (hereinafter described as the petitioner) directed against the judgment and the order of sentence passed by learned Judicial Magistrate, Moga, dated November 08, 1986 and that of the learned Additional Sessions Judge, Faridkot dated December 08, 1987. The learned Judicial Magistrate had held the petitioner guilty of the offence punishable under Section 9 of the Opium Act and thereupon sentenced him to undergo rigorous imprisonment for two years and pay a fine of Rs. 1,000/. In default of payment of fine, he was to undergo further rigorous imprisonment for three months. The appeal filed by the petitioner was dismissed by the learned Additional Sessions Judge, but the sentence was reduced to one year rigorous imprisonment without interfering with the quantum of fine.

The relevant facts of the prosecution case are that on November 01, 1982, ASI Harjit Singh of Police Station Bagha Purana alongwith some other police officials was on excise checking duty. The police party was going from village Sekha Kalan towards village Thathi Bahi. The petitioner was seen coming from the other side. On noticing the police party, he tried to avoid them. On suspicion he was stopped, his personal search was conducted and five kilogram opium wrapped in a glazed paper was recovered from the bag. The bag was being carried by the petitioner in his right hand. Ten grams of opium was taken as the sample. The sample and the rest of the opium was converted in two separate parcels and was sealed with the seal `HS'', both were taken into possession vide the recovery memo. Rukka was sent to the police station, on the basis of which formal First Information Report was recorded. Rough site plan was prepared. The case property was deposited in the `Malkhana''. Subsequently, the representative sample was sent to the Chemical Examiner, who opined that it was opium. This led to the filing of the report under Section 173 Code of Criminal Procedure.

The learned trial court appraised the evidence of Sohan Singh, Head Constable and A.S.I. Harjit Singh PW1 and PW2 respectively. He recorded the finding that prosecution has proved its case beyond all reasonable doubts and, thereupon passed the impugned judgment and the order of sentence. Aggrieved by the same, an appeal was filed, which as already referred to above, was dismissed, but the sentence was reduced. Hence the present revision petition.

Learned counsel for the petitioner highlighted the fact that Muharar Head Constable Sant Parkash Singh was on leave on November 01, 1982. A report to this effect has been made even in the daily diary, copy of which is Exhibit DZ/1. Thus the property as such could not be deposited with him.

The law is well settled. The duty is heavily caused on the prosecution to prove its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from `may have'' to `must have''.

In the present case in hand, the evidence on the record clearly shows, as is apparent from the copy of the report Exhibit DZ/1 that Muharar Head Constable was on leave on November 01, 1982 when the incident took place. On the contrary, he has chosen to file an affidavit Exhibit PF that the case property was deposited with him on the said date. The two facts are at poles apart. On the one hand, it has been established that he was not in the police station being on leave, on the other hand, he swears in the affidavit that the case property was deposited with him. This fact alone shows that all is not well with the investigation. The true facts are far from the truth as to what is being told in court. Otherwise also on account of the aforesaid, the link evidence is totally shattered. It is not shown that the property i.e. opium and the sample were kept in safe custody or that there were no chance of them being tampered with. Necessarily it cannot be held that prosecution had successfully proved its case. In face of this important lacuna, it is otherwise difficult to pin faith also in the testimony of the official witnesses. The petitioner is entitled to the benefit of doubt.

For these reasons, the revision petition is accepted. Both the judgments are set aside. The petitioner is acquitted awarding him the benefit of doubt.