Swarna vs State of Punjab

S.S. Sodhi, J.

The conviction of the appellant Swarna for an offence under section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act'') cannot indeed be sustained.

According to the prosecution, on December 17, 1985 at about 8.45 a.m. when a police party consisting of A.S.I Dharam Pal, A.S.I. Natha singh and two Constables were returning to the Police station after patrolling, they saw the appellant Sawarna coming on a cycle from the opposite direction. On seeing the police party, it is stated that Swarna tried to hide behind the shed of the bus stop, whereupon suspicion was raised and Swarna was apprehended. On search he was found to be carrying a bag which contained 20 kilograms of poppy husk. It is in respect of this recovery that the appellant stands convicted the sentenced to 10 years rigorous imprisonment and fine of rupees one lac.

A reference to the material on record would show that the case against appellant Swarna rests upon the testimony of the two official witnesses namely PW.1 A.S.I. Dharam Pal and P.W.2 A.S.I. Natha Singh, it is no doubt well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official, but it is an equally well recognised rule of caution that courts should look for independent corroboration to the testimony of official witnesses in such cases. Relevant of course, in this context is the time and opportunity available to the police party to associate independent witnesses. It was sought to be contended on behalf of the prosecution that no occasion was provided here for any independent witness being associated, as the police party was returning after patrolling and they happened to come across the appellant Swarna quite unexpectedly and all of a sudden Even if, it be taken that this was no there can be no manner of doubt that there was ample time and opportunity for some independent person to have been associated at the time of the search, weighing of the poppy husk, taking a sample from it or while completing the other formalities in the case. It is pertinent to bear in mind here that the incident took place at about 8.45 A.M. and on a thoroughfare beside a bus stop and what is more village Narangpur from where the weighing scales were obtained was only 4 or 5 fields away from the place of recovery. If weighing scales could have been sent for from this village, some respectable of the village too could have been called for being present while completing some formalities of the case which would undoubtedly have lent further assurance and credibility to prosecution case.

Further, in cases under the Act, keeping in view the stringent punishment prescribed thereunder, interests of justice do indeed, render it incumbent upon the Court to ensure that before a conviction is recorded, no element of doubt creeps in. Corroboration of the search of and recovery from an accused person by some independent respectable persons would go a long way in removing such doubts.

Another significant feature of the case here, is that it was originally registered as one under Section 9 of the Opium Act. It would appear that on this account none of the other safeguards prescribed by the mandatory provisions of the Narcotic Drugs & Psychotropic Substances Act, 1985 were taken note of and complied with during the investigation of the case.

Taking an over all view, therefore, of the entire evidence on record, the conviction and sentence of appellant Swarna cannot be upheld and it is accordingly hereby set aside, and this appeal is, thus accepted. The appellant be released forthwith and the fine, if paid, shall be refunded to him.