PIARA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PIARA Singh petitioner was convicted by the Judicial Magistrate First Class, Moga, under section 9 of the Opium Act and was sentenced to two years Rigorous Imprisonment and a fine of Rs. 2,000/ -. In default of payment of fine, he was ordered to undergo further Rigorous Imprisonment for six months. His conviction was maintained in appeal by the Additional Sessions Judge, Faridkot. The sentence of imprisonment of two years was, however, reduced to one year's Rigorous Imprisonment. The sentence of fine was maintained. Against the verdict of two Courts as above, the present Revision Petition has been filed by the petitioner.

(2.) THE prosecution allegations in brief are that on April 16, 1981, Assistant Sub Inspector Sant Singh (P.W.2) along with a Police Party was on patrol from village Mahla Kalan to the Bus Stand of that village. When they were near the Bus Stand, they found the petitioner coming on foot from the side of the village. The petitioner behaved in a manner which aroused suspicion. He was apprehended. A search of his person revealed the presence of 4 Kilograms of opium in a jhola which was recovered. A sample of the article was taken which on subsequent analysis by the Chemical Examiner was found to be opium. The petitioner was thereafter prosecuted, with the result already indicated.

(3.) THE learned counsel for the petitioner has placed his finger on a crucial point with a view to show that the recovery of the incrimination opium from the petitioner was a faked affair and in any case the same was not free from doubt. In this behalf, the counsel made a reference to two orders, one passed by the Duty Magistrate on April 17, 1981 (Exhibit DA) and the other by the Sub -Divisional Judicial Magistrate dated April 20,1981 (Exhibit DB). The first mentioned order was passed by the Duty Magistrate at the time when the petitioner was produced before him for purposes of remand to Police custody. As per this order, the petitioner was remanded to Police custody till April 20, 1981. The order recites that the counsel raised an objection that the sample of the recovered opium had not been brought by the Police. The learned Duty Magistrate mentioned in the order that "The police is directed to produce the Case Property before the Ilaqa Magistrate on the date fixed (20.4.1981). When the case was taken up on the next date i.e. April 20, 1981 by the Ilaqa Magistrate, the said Magistrate recorded in the order Exhibit DB that in spite of the earlier order, dated April 17, 1981 passed by the Duty Magistrate, the Case Property had not been produced by the Police. From these two un -impeachable orders, it is submitted that in case the opium in question had been recovered by the Police as alleged by the persecution, there was no reason as to why the same was not produced before the Ilaqa Magistrate on April 20, 1981. It is significant to note that no attempt has been made by the prosecution to clear the cloud in this behalf and in such a situation the learned counsel for the petitioner is justified in making the submission noticed above. A doubt in regard to the genuineness of the recovery is thus, created on account of the above circumstance and the benefit of this doubt must go to the petitioner. In view of this fact, there is no need to advert to the other aspects of the case.