STATE OF PUNJAB Vs. NARESH KUMAR

JUDGEMENT

(1.) OPIUM weighing 5 Kilograms from the possession of the accused was allegedly recovered by a Police Party headed by Des Raj, Inspector (PW -4) alongwith ASI Mehar Chand, HC Yudhishtar (PW -3) and others on 19 -1 -1986 at about 9.00 A.M. while going towards Kotha Bahman from the side of Kotha Sainian within the jurisdiction of Police Station City Kot Kapura, district Faridkot. The contraband was being carried by the accused wrapped in a gazed paper contained in a bag (Jhola). While carrying the same in his hand, on seeing the Police party he tried to slip away and on this suspicion having arisen the aforesaid police party secured him. Inspector Des Raj (PW -4) took various steps for the investigation of the case by way of separating 10 gms. of opium from the whole lot and converted it into a parcel and sealed it with seal bearing impression 'D.R.' The remaining quantity of opium Ex. P.1 was also packed and sealed with the same seal. Jhola Ex. P2 and the remaining opium were taken into possession vide memo. Ex. P3. The seal after use was handed over to HC Yudhishtar Singh. The impression of the seal Ex. P.3 was prepared at the spot. After presentation of the challan, a charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act') was framed to which he pleaded not guilty and claimed trial. The prosecution has examined PW -2 HC Gurpal Singh, PW -3 HC Yudhishtar Singh and PW -4 Inspector Des Raj in support of the ocular version to prove the recovery of opium from the possession of the accused and various steps taken during the investigation of the case. PW -1 Constable Puran Singh appeared in Court and tendered his affidavit Ex. P.A. in evidence. Mehar Chand, A.S.I. was given up being unnecessary. On tendering into evidence the report (Ext. PF) of the Public Analyst -cum -Assistant Chemical Examiner, the prosecution evidence was closed. When examined under Section 313 Cr.P.C. the accused denied the prosecution allegations against him emphatically and pleaded innocence and false implication.

(2.) THE learned trial Court after appraisal of the evidence on record, acquitted the accused of the charge primarily on the ground (i) that no independent witness was joined by the Investigating Officer when he was on patrol duty in spite of the availability of such witness in abundance; and (ii) that provisions of Sections 41, 42, 43 and 50 of the Act have not been complied with. Feeling aggrieved against the said order of acquittal, the State has filed the present appeal which is being disposed of vide this judgment.

(3.) IT is not disputed that the Police Party headed by Inspector Des Raj (PW -4) was on patrol duty on 19 -1 -1986, as admitted by him. Whether any independent witness was available at the place of recovery when the accused was accosted is amply proved from the statement of PW -3 HC Yudhishtar Singh. The relevant portion of his statement runs as under : - "xx xx xx xx The place of recovery is a thoroughfare. We came across number of persons while going to the place of recovery but we did not join any one of them. x x x" In view of this categorical statement of this witness, nothing more can be said that the Investigating Officer did not care to join one or more persons from the public to witness the arrest and recovery of the contraband from the possession of the accused. The Investigating Officer was required to do so particularly when the Police party was on patrol duty. In such a situation, non -joining of any independent witness in a serious offence under the provisions of the Act in question, has to be taken serious note of and adverse inference has to be drawn against the prosecution that nothing incriminating was recovered from the possession of the accused as alleged by it.