JAGTAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) JAGTAR Singh, petitioner-accused has faced trial in respect of offence under section 411 of Indian Penal Code (hereinafter referred to as 'IPC') and Section 9 of the Opium Act (hereinafter referred to as 'Act') alongwith Mohinder Singh, accused, who was charged under Section 379 IPC in the Court of Chief Judicial Magistrate, Hoshiarpur. Petitioner-accused was convicted under Section 411 IPC, and sentenced to rigorous imprisonment for one year and was further convicted under Section 9 of the Act and was sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for nine months. Mohinder Singh has not chosen to assail his conviction in the present petition. Jagtar Singh had filed Criminal Appeal No. 31 of 13.10.1988 against the order of sentence passed against him which was dismissed by the Additional Sessions Judge, Hoshiarpur as per order dated 3.4.1989 modifying sentence awarded from rigorous imprisonment of three years to rigorous imprisonment for two years while maintaining the sentence of fine. Hence the present revision petition.

(2.) PUT shortly the facts of the prosecution case are that on 23.8.1984. Surjit Singh in order to see the annual fair being held in the village had gone on the motor cycle belonging to his brother Ram Krishan bearing registration No. PBO 4081. He had parked the motor cycle near the shop and the documents were left in the cabin of the motor cycle. While he was watching the Kabaddi match, he saw Mohinder Singh accused taking his motor cycle and Hardip Singh sitting on the pillion rider seat. As both of them were earlier known to him he assumed that they were taking a round on his motor cycle and for that reason, he did not check Mohinder Singh. After the match was over, Surjit Singh looked for his motor cycle and Mohinder Singh but found no trace of them. Thereafter he searched for Mohinder Singh and motor cycle in the nearby villages and finding no clue about their whereabouts, he lodged the report Ex. PM with Assistant Sub Inspector Darshan Singh and Assistant Sub Inspector Gurdip Singh who met him on the way while he was proceeding towards the police station. Assistant Sub Inspector Darshan Singh made endorsement Ex.PM/2 and sent the same to the police station on the basis of which formal FIR Ex.PM/3 was recorded. Investigation of the case was taken up by Assistant Sub Inspector Gurdip Singh. On 2.11.1984 at about 4.00 P.M., Assistant Sub Inspectors Ajit Singh and Gurdip Singh in the company of other police officials were present at the turning of Nandachaur in the area of village Chakkoawl in connection with patrol duty. They noticed accused Jagtar Singh coming on the motor cycle from the side of village Sham Chaurasi. He was stopped by them. Accused Jagtar Singh was carrying a gunny bag on the seat of the motor cycle which was found to contain 30 kgs of opium. 10 grams of opium was separated as simple by Assistant Sub Inspector Ajit Singh in a small tin box and thereafter sample and the residue opium were sealed in parcels Ex.P-2 and P-3 respectively and the same were taken into possession vide seizure memo Ex.PA prepared by the Investigating Officer. Accused failed to produce any permit for carrying the opium in his possession. Ruqa Ex. PC was transmitted to the police station with regard to the recovery of opium on the basis of which formal FIR Ex. PC/1 was recorded in the police station. During the course of investigation, it was verified that motor cycle in question was the same regarding which FIR No. 192 dated 29.4.1984 of theft had already been registered against Jagtar Singh. The motor cycle was taken into possession vide recovery memo Ex.PJ. After receipt of the Chemical Examiner Report Ex.PE and on completion of necessary investigation, petitioner-accused Jagtar Singh alongwith Mohinder Singh was challaned. On these allegations, charges were framed under Section 379 IPC against Mohinder Singh - accused and under Section 411 IPC against Jagtar Singh. Separate charge under Section 9 of the Act was framed against Jagtar Singh, petitioner-accused. As the recovery of opium was also made from the possession of Jagtar Singh-accused at the time when motor cycle in question was recovered from him, both these cases were ordered to be consolidated by the trial Magistrate in terms of Section 220 of the Code of Criminal Procedure (hereinafter referred to as 'Code').

(3.) LEARNED counsel representing the petitioner-accused has assailed the testimony of Assistant Sub Inspectors Ajit Singh and Gurdip Singh on the ground that the recovery of the motor cycle from the petitioner-accused made on 2.11.1984 as stated by them deserves to be rejected primarily on the ground that Surjit Singh, who is the author of the report in his deposition had stated that after his motor cycle was stolen on 23.8.1984, he had seen the same motor cycle eight days thereafter in the police station and then the said motor cycle was taken on sapurdari within 3/4 days thereafter. Thus, the deposition of Surjit Singh, according to the learned counsel for the petitioner-accused, has nullified the genuineness of the recovery allegedly made on 2.11.1984 from the from the possession of the accused. While advancing this criticism, the actual position on record has not been taken into account. Ram Krishan who is brother of Surjit Singh had taken the motor cycle on sapurdari from the Court on 10.11.1984. As stated by Assistant Sub Inspectors Gurdip Singh and Ajit Singh, accused was apprehended on 2.11.1984 and the motor cycle in question was taken into possession by them vide seizure memo Ex. OA. Admittedly, Surjit Singh was not present at the time of recovery of the motor cycle as well as 30 kg of opium which the accused was carrying in a gunny bag on the seat of the motor cycle. In the face of statement of Assistant Sub Inspectors Gurdip Singh and Ajit Singh, recovery made cannot be faulted simply because Surjit Singh had chosen to testify having noticed the motor cycle lying in the police station within eight days of the commission of theft of the motor cycle. There can be an honest mistake on the part of Surjit Singh in making out the number of days when he had noticed the motor cycle lying in the police station. It is totally inconceivable that such a huge recovery would have been foisted upon the accused by these witnesses. They have made the recovery from the motor cycle carried by the accused while they were present on the turning of Nandachaur in the area of village Chakkowal in connection with patrol duty. They had no prior information that accused would be coming at that place of recovery. Thus simply because Assistant Sub Inspectors, Gurdip Singh and Ajit Singh are police officials per se is no ground to reject their version with regard to the recovery made from the possession of the petitioner-accused and both the courts below have rightly rejected the stand taken by the petitioner in this regard.