JAGDISH CHAND Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner was convicted under Section 9 of the Opium Act and was sentenced to undergo rigorous imprisonment for a period of one year and six months and to pay a fine of Rs. 300/- and, in default of payment of fine, to undergo further rigorous imprisonment for two months by the Judicial Magistrate 1st Class, Patiala. The appeal filed by the petitioner was dismissed by the Additional Sessions Judge, Patiala, on 7.2.1986. Hence, this revision petition.

(2.) THE brief facts of the prosecution case are as under :- On 5.10.1979, ASI Hardeep Singh along with Head Constable Sarup Singh, Head Constable Shamsher Singh, constable Avtar Singh and other officials, was on excise and opium detection raid and, when the police party reached near new Moti Bagh, Patiala on the road the accused was also seen coming on foot from the side of village Sular. On suspicion he was apprehended and, prior to this, the police also joined Sadhu Ram as an independent witness while they were going for the detention of opium and excise. The personal search of the accused was conducted under the rules. On personal search, the accused was found having a jhola in his right hand, in which opium wrapped in a glazed paper was recovered. On weighing the opium, it came to 5 Kgs., out of which 20 grams was taken as sample and then two separate parcels were prepared and they were sealed with the seal of "H.S." along with the thumb-impression chit of Sadhu Ram PW. The remaining opium then was put in a tin box and taken into possession, vid recovery memo Ex. PA attested by the P.Ws. The specimen seal ex. P-1 was also prepared. The jhola is Exhibit P-2 and Exhibit P-3 is opium. After that, ruqa Ex. PB was sent to the police station through Constable Avtar Singh for the registration of the case, on the basis of which formal FIR Ex. PB/1 was recorded. On further search of the accused, Rs. 5/- were recovered from him, which were also taken into possession, vide recovery memo Ex. PA. The site plan Ex. PC of the place of recovery was prepared with correct marginal notes.

(3.) THE learned counsel for the petitioner has contended that the prosecution has not been able to bring home the guilt against the petitioner beyond reasonable doubt and the prosecution version is not free from infirmities and contradictions. It was further submitted by the learned counsel for the petitioner that the prosecution has not examined independent witnesses in this case; that only official witnesses have been examined, who are highly interested persons and thus they should not be believed; that Sadhu Ram PW, who is alleged to have been joined by the police in the investigation of this case, is not an independent witness and that Sadhu Ram PW has been examined by the petitioner in his defence and he has not supported the case of the prosecution. It is also argued by the learned counsel for the petitioner that the petitioner was not provided an opportunity to cross-examine Durga Singh, PW, whose affidavit was tendered by the prosecution in evidence.