Tara Chand vs State of Punjab

V.S. Aggarwal, J.—Tara Chand has been held guilty by the learned Additional Sessions Judge, Sangrur for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). By the subsequent order of sentence of even date (26.4.1995), the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac. In default of payment of fine, he was directed to undergo further rigorous imprisonment for 2 years. Aggrieved by the said judgment and the order of sentence, the present appeal has been filed.

The facts of the prosecution case alleged are that on 12.3.1989 SI Balwant Singh along with ASI Rama Shankar and other police officials were going for patrolling from village Ladel to village Gidrani in a jeep via metalled road. There is a bridge of Seme Nalla in the area of village Gidrani. The police party was at a distance of 56 karams from that bridge, when one Ajaib Singh a public person met them. In the meantime, the appellant was seen coming from the side of the village. On seeing the police partyy, he became nervous and tried to slip away towards his right hand. On suspicion, he was stopped. Enquiries were made about his whereabouts.

SI Balwant Singh told him that a search is to be conducted and if he desires it could be done in presence of a Gazetted Officer or a Magistrate. The appellant reposed confidence in SI Balwant Singh. Tara Chand appellant was holding a bag (Jhola) in his right hand. It was checked and found to be containing opium wrapped in a glazed paper. 10 grams was taken as a representative sample. Rest of the opium was weighed and found to be 990 grams. Rest of the opium and the samples were converted into separate parcels and sealed with the seal of ''BS''. They were taken into possession vide a recovery memo which was attested by other members of the police party including public witness Ajaib Singh.

Ruqa Ex. PB was sent to the police station on the basis of which formal FIR was registered by MHC Joginder Singh. The appellant was arrested and his personal search was conducted. Rough site plan was prepared. The case property was deposited in the Malkhana. Later the representative sample was sent for chemical analysis. On receipt of the report that it was opium, challan against the appellant was presented.

The learned trial court framed a charge against the appellant for the offence punishable under Section 18 of the Act. On the appellant''s pleading not guilty and claiming a trial, the prosecution produced 3 witnesses besides tendering the affidavit of HC Joginder Singh and the report of the Chemical Examiner. The statement of the appellant was recorded to enable him to explain the circumstances appearing against him. Appellant denied recovery of opium from his person. According to him, he was apprehended from his village in the presence of Sher Singh, Jagminder Singh and Mahant Aitwar Gir. He was falsely implicated.

In defence the appellant examined two witnesses. DW1 Mahant Aitwar Gir stated that appellant is a Shopkeeper. On 10.3.1989 one Thanedar named Rama Shankar had come to the house of the appellant. They had enquired for the reason. The witness was informed that Deputy Superintendent of Police, Lehra wanted him. The appellant was taken and thereafter falsely implicated. Ajaib Singh DW2 is the alleged witness that had been cited by the prosecution. He was not examined by the Public Prosecutor. The witness added that no recovery was effected from the appellant in his presence. He was falsely cited as a witness. When crossexamined by the Public Prosecutor, he explained that his signatures were obtained in police station. He was told that the signatures shall be cancelled subsequently.

The learned trial court on appraisal of the evidence held that it was a case of chance recovery. The prosecution had successfully proved that 1 kilogram of opium was in illegal possession of the appellant and, therefore, the appellant was held guilty of the offence punishable under Section 18 of the Act followed by the order of sentence.

In the present case in hand Ajaib Singh DW2 was the solitary public witness joined in the raiding party. During the course of trial, he was given up by the prosecution to have been won over by the appellant. He appeared as a defence witness. He did not support the prosecution version and stated that his signatures were obtained on blank papers while no opium was recovered from the appellant. When such is the statement of the witness, there is no hesitation in concluding that he cannot be looked upon a person who would do anything for the interest of justice. He wants the Court to believe that he had given the signatures on blank papers and still had not taken any action. Ex.DA is the copy of the judgment rendered in an earlier case in which he has also been cited again as a prosecution witness. It appears that he is a person who is available at any time and is at the beck and call of the police. His statement, therefore, deserves to be rejected.

Inspector Balwant Singh PW2 is the Investigating Officer. He stated by supporting the prosecution case that 1 kilogram of opium was recovered from the person of the appellant. As per this witness after the sample was drawn and the representative sample and the rest of opium were sealed, the said seal was given to ASI Rama Shanker. On basis of this fact, it was argued that what is being stated, should not be accepted from the testimonies of the official witnesses. If Ajaib Singh public witness was present, then in normal circumstances the seal after use would be given to the independent person. If it is not given, there should be reasonable explanation. The said explanation is not forthcoming in the facts of the present case. In that event it leads one to presume that perhaps Ajaib Singh was not present and what is being stated by the prosecution cannot be accepted on its face value. The evidence shows that the public witness examined was unreliable having no regard for truth. The official witnesses and their testimonies cannot be accepted on their face value because they insist that Ajaib Singh was present but the circumstances indicate that what they are testifying does not appear to be so. The strict proof of establishing the case beyond all reasonable doubt is, therefore, lacking. With this cloud of doubt hovering, the appellant is entitled to the benefit of doubt. Therefore, he is entitled to an acquittal.

For these reasons, the appeal is accepted. The judgment and the order of sentence passed by the trial court are set aside. The appellant is acquitted giving him the benefit of doubt. He be released if not required in any other case.