CHANAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE prosecution case in brief is that on 5.1.84, SI Jhanda Singh, SHO PS Munak was going towards Village Hamirgarh and Badalgarh in connection with patrolling and the detection of opium, illicit liquor along with ASI Gurmel Singh, HC Harjinder Singh, HC Inder Singh and constable Baldev Singh etc. When they took a turn from bus Adda Badalgarh to village Badalgarh, they saw the accused and his companion going towards village Badalgarh. At the sight of the police party, accused Chanan Singh swerved towards the left hand side. SI Jhanda Singh etc. drew near and apprehended accused Chanan Singh. ASI Gurmel Singh apprehended the companion of the accused. SI Jhanda Singh effected the personal search of the accused who was wrapping khes around him. Opium wrapped in a piece of glazed paper was recovered contained in a jhola which has hanging on the left shoulder of the accused. Opium weighed 5 kgs. Out of the recovered opium, 10 grams was taken out as sample. Sample opium was put in a small tin box which was made into a parcel. Remaining opium was put in the same jhola. That jhola was put in a tin pipa which was made into a parcel. Both the parcels containing opium were sealed with the seal of SI Jhanda Singh bearing impression SS. SI Jhanda Singh prepared the impression of the seal at the spot Ex.P1 which was duly attested by him. Both the sealed parcels containing opium were taken into possession vide memo Ex.PA attested by HC Harjinder Singh and constable Baldev Singh. Visual site plan Ex.PD was prepared at the spot with correct marginal notes. From the personal search of the accused, currency note of the denomination of Rs. 5/- was recovered. In this behalf, personal search memo Ex.PB was prepared which was attested by HC Harjinder Singh and constable Baldev Singh. Ruqa Ex.PC was sent to the police station for the registration of case against the accused on the basis of which case FIR No. 10 Ex.PC/1 was registered at PS Munak don 5.1.84 under Section 9 of the Opium Act. On return to the police station, SI Jhanda Singh deposited the parcels containing opium with the MHC with seals intact. Sample was sent to the chemical examiner for chemical examination per constable Om Parkash. Chemical examiner vide report Ex.PE found the sample as containing opium containing meconic acid and morphine to the extent of 3.6%.

(2.) AFTER investigation, accused was challaned under Section 9 of the Opium Act. Accused was charged under Section 9 of the Opium Act by Judicial Magistrate First Class, Sunam vide order dated 3.1.85. Accused pleaded not guilty to the charge and claimed trial. With a view to bring home to the accused the charge levelled against him, the prosecution examined SI Jhanda Singh and HC Harjinder Singh PWs besides tendering into evidence the report of the chemical examiner Ex.PE and affidavits Ex.PF and PG of formal witnesses.

(3.) -5. At the conclusion of the trial, vide order dated 25.2.87, Judicial Magistrate First Class, Sunam found the charge under Section 9 of the Opium Act proved against him and he accordingly convicted him thereunder and sentenced him to undergo RI for 1-1/2 years and to pay fine of Rs. 300/- and in default of payment of fine to undergo further RI for one month. Chanan Singh went in appeal against his conviction and sentence to the Court of Sessions at Sangrur. Vide order dated 5.2.88, learned Sessions Judge, Sangrur dismissed his appeal. Still not satisfied, Chanan Singh has come up in revision to this court. 6. Prosecution case rests on the testimony of HC Harjinder Singh PW1 and that of SI Jhanda Singh PW2. Both of them are police officials interested in the success of the case detected by them. Before accepting their testimony, the court has to sound a note of caution to itself that they are police officials interested in the success of the case detected by them and, therefore, the court should be careful before accepting their testimony. Bus Adda Badalgarh is at a distance of 15-20 karams from the place of recovery. There is liquor vend at Bus Adda Badalgarh. There is one tea shop at Bus Adda Badalgarh. There are residential houses near Bus Adda Badalgarh. It is a thorough fare. SI Jhanda Singh has stated that he did not care to call any independent witness. SI Jhanda Singh has stated that this tea shop was lying closed. Liquor vend was also lying closed. Residential houses are at a distance of 30-40 yards from the bus adda. There is, however, no evidence that any witness was in hand who could be joined. If there was some witness in hand and he could be joined, there could be criticism against SI Jhanda Singh that he was over-zealous interested in bringing home to the accused this recovery by dint of his own testimony and the testimony of HC Harjinder Singh who was a police official. HC Harjinder Singh has stated that no independent witness was available to them at the spot. No witness was in sight near the place of recovery. Village Badalgarh is at a distance of 2 to 2-1/2 furlongs from the place of recovery. It somebody had been sent to village Badalgarh to bring some independent witness after the recovery, that would not have meant anything because he could not have vouchsafed about the recovery of opium from the possession of the accused. I do not think the testimony of SI Jhanda Singh and that of HC Harjinder Singh could be rejected on the mere score that there is no corroboration to it by independent testimony. There is no animus disclosed against SI Jhanda Singh for implicating the accused falsely. Why should SI Jhanda Singh have planted 5 kgs. of opium on the accused when he had no animus against him ? After all everybody has conscience. No man in his conscience would plant such a heavy quantity of opium on an innocent person when he knows that such a heavy quantity of opium can land him in jail for quite a longer term and during that period his family would starve. Mohan Singh DW1 has stated that on 5.1.84 he was driver on bus on Fatehabad- Chandigarh route and the accused and his companion were travelling by that bus. They were brought down from the bus. Nothing was recovered from them and they were taken to the police station. Mohan Singh DW1 cannot be believed as he has not supported his statements by any duty roster that he was really on duty on that bus at that time and this was the route of this bus. Neither Kuku nor Harnek Singh was produced. If either Kuku or Harnek Singh had been produced, there could have been some ring of truth attached to the defence version. Defence version was rightly rejected by the courts below. There is no discrepancy in the statements of SI Jhanda Singh and HC Harjinder Singh PWs which could impinge upon their presence at the spot. 7. In my opinion, the learned courts below justifiably found the charge proved against the accused on the appreciation of evidence brought by the prosecution. Accused gives his age as 60 years on 3.1.85 when charge was framed against him. Accused cannot be released on probation of good conduct when we look to the recovery of such a heavy quantity of opium from him. Recovery of a large haul of opium from the possession of the accused is itself a ground which will dissuade the court from giving him the benefit of the provisions of Probation of Offenders Act or Sections 360/361 Cr.P.C. Recovery of such a heavy bulk of opium from the possession of the accused suggests that he was either a smuggler in opium or was a carrier of opium from one place to another charging heavily. Such persons who deal in opium are enemies of the nation inasmuch as if younger generation is initiated into consuming opium, the future generation will be that of opium eaters. Accused was convicted about 13 years ago and that during this period he has suffered lot of mental pain and agony on account of this conviction and sentence, the sentence requires to be slashed. So, the sentence is slashed and brought down to RI for 9 months. Sentence to fine shall, however, remain intact together with the default clause. With the above reduction in sentence, this revision fails and is dismissed. Revision dismissed.