STATE OF PUNJAB Vs. RAMESH KUMAR

JUDGEMENT

(1.) PROSECUTION story is that the accused was found in possession of 410 grams of opium when he was carrying the same in a Jhola, when the police party headed by Assistant Sub Inspector -Anil Kumar PW2 secured him and effected search of his person in the area along villages Padhri and Talwandi Nepalan, and thus recovered the opium from the Jhola held by the accused. A sample was prepared and remaining opium was taken into possession in duly sealed parcel. Recovery memo Exhibit PA was prepared at the spot and ruqqa Exhibit PB was sent to the Police Station, on the basis of which formal First Information Report Exhibit PB/1 was recorded. Site plan Exhibit PC was prepared of the spot and on return to the police station, after completion of investigation at the spot, the case property was deposited with Assistant Noharrir Head Constantinople Singh -PW4. To substantiate the charge against the accused for offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The prosecution examined as many as four witnesses namely Head Constable Bakhshish Singh -PW1, Assistant Sub Inspector Anil Kumar -PW2, Constable Pritam Singh -PW3 and Assistant Moharrir Head Constable Jassa Singh -PW4. PW3 and PW -4 were examined to prove their formal affidavits Exhibits PD and PE respectively. Chemical Examiner's report Exhibit PF was also tendered in evidence.

(2.) THE trial Court refused to believe the occular version of the prosecution witnesses being tainted and discrepant of the interested official witnesses particularly when no effort to join any independent witness, available in abundance, was made nor mandatory provisions of the Act have been complied with. Feeling aggrieved against the order of acquittal passed by the trial Court, State filed this appeal which is being disposed of vide this judgment.

(3.) ADMITTEDLY , the occular version is based upon the statements of Head Constable Bakshish Singh and Assistant Sub Inspector Anil Kumar PW -2. On the perusal of their statements, it is abundantly clear that none of the witnesses has stated that any effort was made to join any independent person in the police party, particularly when it was accepted that the police party was on patrol duty. The spot memo. Exhibit PA and the ruqqa Exhibit PB do not indicate that any independent witness was asked to join. Of course in the cross -examination Assistant Sub Inspector Anil Kumar PW -2 has half heartedly stated that Ranjit Singh constable was sent to call witnesses from the village but no person was prepared to join the police investigation. This PW2, cannot be believed to say so by way of mere improvement in Court, particularly when he has not stated so in the examination - in -chief as well as in the aforesaid documents Exhibits PA and PB, prepared by him. Even there is no note regarding this fact of having made any effort to join any independent witness in the Zimni. Moreover, said constable Ranjit Singh has also not been examined. From all these facts and circumstances, it is proved in positive terms that the investigating officer did not join any person from public in the raiding party or at the time of arrest and seizure of the opium from the possession of the accused. Under these circumstances, it has to be said that the prosecution has failed to prove recovery of the alleged contraband from the possession of the accused beyond reasonable doubt and it would be most unsafe to base conviction on the tentative and otherwise discrepant evidence of the official witnesses.