MAKHAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS revision petition is directed against the order of October 13, 1988 of the learned Additional Sessions Judge, Gurdaspur vide which he had set aside the judgment of conviction and order of sentence of January 15, 1988 passed by Judicial Magistrate, Batala thereby convicting the accused petitioner herein under section 9 Opium Act, 1978 (hereinafter referred to as 'the Act') and sentenced him to undergo R.1 for 1-1/2 years and to pay a fine of Rs. 500/- and in case of default of payment of fine to undergo further R. I for three months, and remanded the case back to the learned trial Magistrate for re-examination of the accused under section 313 Cr.P.C. and then to decide the case afresh.

(2.) FACTS of this case are that on September 14, 1984, Makhan Singh petitioner was seen coming from the side of village Shahpur Goraya by a police party headed by Head Constable Wassan Singh. On being challenged, the accused threw the jhola carried by him and made good his escape. When the said jhola was searched, it was found to contain opium weighing 5 kilograms out of which 10 grams was separated. The sample as well as the remaining bulk was seized and various memos were prepared. F.I.R. was recorded. The accused was, however, arrested on 1.12.1984 and thereafter he was tried, convicted and sentenced.

(3.) I have given a thoughtful consideration to the facts and circumstances of the case in hand and examined the above-said judgments. Prosecution story is that at the sight of the police, the petitioner had thrown away the jhola carried by him and made good his escape. It is also evident that the abovesaid occurrence had taken place on September 14, 1984 whereas the accused was arrested on Ist December, 1984. It had not been put to the petitioner in his statement under section 313 Cr.P.C. that he had run away from the spot after throwing the jhola and was subsequently arrested on Ist December, 1984. The learned Additional Sessions Judge after having rightly held that as the prosecution case was not put to the petitioner properly, he was bound to have been prejudiced at the trial as he had not been afforded an opportunity to explain the circumstances appearing in the evidence against him, and that the conviction and sentence imposed on him could not be sustained, had gravely erred in remanding the case back to the trial Magistrate.