JAI PARKASH Vs. STATE,

JUDGEMENT

(1.) THE petitioner was convicted under Section 9 of the Opium Act, 1878, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/ - in default whereof to rigorous imprisonment for 6 months. On appeal, his sentence was reduced to rigorous imprisonment for 9 months and a fine of Rs. 500/ -, in default whereof to rigorous imprisonment for 2 months. Hence, this revision.

(2.) THE prosecution case is that the petitioner was apprehended at about 1.10 A. M. on the night intervening 24th and 25th May 1975, at the G. T. Road Bus Stand in H Block Seelampur, by a police party which included a D. S. P. Asad Farookhi. The accused was found carrying a bag which contained opium about 4 kgs. in weight. The police took a sample of 200 gms. and sent it for analysis to the Central Forensic Science Laboratory. The said Laboratory found in the sample 5.13% contents of Morphine. It was in these circumstances that the aforesaid conviction took place.

(3.) THE learned counsel for the petitioner challenged the conviction on grounds more than one. The first of his arguments is that the petitioner was falsely implicated as the opium was not recovered from him. That no recovery was effected from him is attempted to be proved in a twofold manner. Firstly, it was said that there were no independent witnesses of the recovery, and secondly, the opium was recovered from the search of a house not belonging to him. Tej Ram, D. W. I. deposed that to police broke open the locks of house No. 366 to which the accused and his brother Kishan objected. So what the police did was that they instituted a case under the Arms Act against his brother Kishan, vide F. I. R. No. 243/75 dated May 25, 1975, and instituted this case against Jai Parkash. The investigating officer, Virender Singh, P. W. 5, did say that he searched the house No. 363 of the accused, but he gave no explanation why he searched the house. This silence on his part should be construed to mean that the opium was not recovered from personal search. Now, the investigating Officer has denied to have searched any other house but that of the accused. The learned Addl. Sessions Judge observed, and correctly too, that there was nothing to arouse suspicion in the act of the investigating officer in further searching the house of the accused after the opium had already been recovered. Simply because nothing was found in the house of the accused, it cannot be said that the opium was planted on the accused. The F. I. R. proved by the accused only shows that accused Kishan Kumar was also carrying a prohibited arm in a public place. As regards the requirement of independent persons witnessing the search, one having some experience of the matter can easily believe the Police Officer if he says that none came forward to be a witness at that hour. I will rule out the allegation of false recovery for one more reason. The recovery was effected in the presence of a D. S. P. whose evidence cannot be disregarded for want of any good reason. It was next pointed out that there was no evidence that the opium was 4 kgs. in weight. Kuber Dutt, P. W. 1, said that he brought the scales from one Bhanwar Singh, a shopkeeper, but he could not give the number of the shop while Bhanwar Singh appeared as a defence witness and denied that he gave any scales to the police officer. Like the appellate court, I will not place much reliance upon the evidence of Bhanwar Singh and would like to believe the Police Officer, who has said that upon weighment the opium was found to be 4 kgs.