ONKAR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) T. P. Garg, J. This criminal revision by Onkar Singh, accused, has been filed against his conviction u/s. 9 of the Opium. Act and sentence to undergo imprisonment till rising of the court and also to pay a fine of Rs. 1,000 or in dfault of payment of fine to further undergo R. I. for three months passed by IInd Additional Sessions Judge, Bareilly, vide his judgment dated 26-5-1984, whereby the appeal filed by accused was dismissed and his sentence of 18 months R. I. was reduced to that of till rising of the court, besides imposing a fine of Rs. 1,000.

(2.) THE facts of the case in brief are: that on 11-8-79 on receipt of a secret informa tion, Raj Bahadur Shukla, Chief Inspector of Excise Department along with certain other officials of the department went to the Police Station Fatehganj (East) from where they took Constable Anek Pal Singh and then proceeded to village Galthua, at about 1 p. m. THE raidingpartyjoined two public witnesses; namely, Ram Prakash and Chid-dan of that village. THE raiding party so formed went to the Baithak of the accused from where a tin containing 4 kgs. 90 grams opium was recovered from near the Pump ing set for which the accused had no licensee. A sample of 30 gms. opium was taken out of the recovered opium by the raiding party, and remaining opium was sealed in the sealed parcel. THE recovery memo Ex. Ka. 1 was prepared. THE accused was arrested and he was brought to the Police Station along with the recovered opium. FIR (Ex. Ka 4) was lodged on the basis of the recovery memo and a case under Section 9 to the Opium Act was registered. THE case was investigated and chargesheet (Ex. Ka 8) was subsequently filed in the court. THE accused pleaded not guilty to charge under Section 9 of the Opium Act and claimed trial. THE prosecution ex amined as many as six witnesses; namely, Raj Dev P. W. 1, Mohammed Aslam P. W. 2, Ram Prakash P. W 3, constable Anekpal P. W. 4, Chiddan P. W. 5, S. I. S. M. Mansal P. W. 6. Documents Ext. Ka 1 to Ka-80 were also relied upon.

(3.) IT was urged on behalf of the petitioner that the Baithak from which the alleged recovery of opium is said to have been effected was not in the exclusive pos session of the accused, but was in the joint possession of all the members of the family, and even if, as per prosecution case, the accused alone was present at the time of recovery, there is no material on record, from which it could be sustained that he had exclusive knowledge of the tin containing the aforesaid quantity of opium lying near the Pumping set in the Baithak. The argu ment or the learned counsel for the petitioner has sufficient force. The prosecu tion examined only two so-called inde pendent P. Ws. viz. Ram Prakash and Chhid dan P. Ws 3 and 5. Ram Prakash P. W. 3 turned hostile and has not supported the prosecu tion case. IT is indeed surprising that both the courts below have still relied upon the testimony of Ram Prakash on the ground that he had signed the recovery memo. But then, both the courts below have committed a manifest error in ignoring the fact that Ram Prakash has himself stated that his signatures on recovery memo were obtained forcibly. The other witness Chhiddan P. W. 5 has admitted that there was litigation be tween the accused and his cousin brother, Sohan Pal Singh. The trial court as well as appellate court have both ignored the aforesaid fact indicating the strained rela tions between the accused and this witness, but then for no valid reasons. According to them, the aforesaid circumstance was not so strong as would lead Chhiddan P. W. 5 to make a false statement in the court. But then, the said conclusion is not free from doubt. Admittedly, litigation between Sohan Pal Singh, cousin brother of Chhid dan and accused was going on much before the present recovery and so possibility of Chhiddan P. W. 5 having come to witness box to depose against the accused in any such matter for extraneous reasons on account of aforesaid litigation cannot be ruled out and it goes to suggest that the evidence of Chhiddan P. W 5 was not free from bias. Under the circumstances, it will not be safe to place reliance on the testimony of both the aforesaid P. Ws. If the same is ruled out of consideration, we are left with the sole testimony of the official P. Ws. IT will be seen that no errorts have been made on behalf of the prosecution and official witnesses ex amined by it that the accused was in ex clusive possession of the house of which the Baithak was a part and that no other mem ber of the family was living therein except the accused. There being no such evidence on record, and rather being to the contrary that there were other members in the family of the accused, it will be presumed that the house of which the Baithank was a part, was in joint possession of so many persons, in cluding the accused. This circumstance renders the entire prosecution case highly doubtful. Again there is no linked evidence that may go show that the seals on opium sample packet and the remaining opium were not tampered with during all the period the same remained in possession of the official witnesses. IT was for the prosecu tion to prove beyond reasonable doubt that the seals were not tampered with during transit or during the period opium packet remained in the custody of the Police Sta tion concerned. Admittedly, the link evidence is lacking in the present case and no serious efforts were made by the prosecu tion to bring the same on record. This also makes the prosecution case quite doubtful. Further the testimony of the official wit nesses finds no support from any inde pendent evidence on record. As stated above, the evidence of so-called inde pendent witnesses is neither satisfactory nor reliable nor can the same be made that basis of any conviction of the accused. The official testimony thus finds no corroboration from any independent evidence. The Investigat ing Officer has furnished no explanation whatsoever as to how and why his choice fell upon only such persons of the village who were convenient to him and were rather at the beck and call of the police. The official witnesses have also not been able to explain as to whether the Baithak in question was in exclusive possession of the accused at the time of recovery, which has rendered their testimony as well unreliable.