BAHAL SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE present revision petition has been filed by Bahal Singh (for short 'the petitioner') directed against the judgment and the order of sentence passed by the Judicial Magistrate Ist Class, Hissar dated 16.5.1988 and of the learned Additional Sessions Judge, Hissar dated 13.7.1988. The learned trial Court had held the petitioner guilty of the offence punishable under Section 9 of the Opium Act, 1878 and sentenced him to undergo rigorous imprisonments for six months and to pay a fine of Rs. 500/-. In default of payment of fine, the petitioner was to undergo further rigorous imprisonment for two months. The appeal preferred by the petitioner had been dismissed.

(2.) THE relevant facts of the prosecution case are that on 13.3.1984 at 1.30 P.M. Assistant Sub Inspector Siri Ram in presence of Head Constable Roop Chand and Constable Om Parkash found the petitioner at Rangoi Bridge. Secret information had already been received that a person who is alighted from the bus is in possession of the opium. The petitioner was apprehended as he came from the side of Kulan near the Rangoi Bridge. The search was effected. The petitioner was found in possession of 1 kilogram of opium which he carried in the pocket of his under-wear. 50 grams was taken as the sample. The sample and rest of the opium were converted into two separate sealed parcels and sealed with the seal of 'SR'. They were taken into possession vide a recovery memo. Ruqa was sent to the police station on basis of which formal first information report was recorded. The representative sample and rest of the opium were deposited in the Malkhana. Subsequently, the representative sample was sent for report of the Chemical Analyst. On receipt of the report that it was opium, the Officer-in-charge of the Police Station had submitted the report under Section 173, Code of Criminal Procedure.

(3.) THE first and foremost question that arises for consideration is as to whether it can be held that prosecution has successfully proved the recovery of opium from the person of the petitioner. The evidence of the prosecution revolved around the statements of Sub Inspector Siri Ram PW-2 and Head Constable Roop Chand PW-1. Indeed they did support the prosecution version so as to state that opium was recovered from the person of the petitioner and inference could be drawn that it was without any licence or permit. Admittedly, no public witness had been joined. It transpired in evidence that the police party was near Rangoi Bridge which is in the area of village Myond Kalan. Being so it was not difficult for the Investigating Officer to fetch the public witnesses.