TIRLOCHAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS appeal arises out of the following facts : - On 28th August, 1988, Sub Inspector Harpal Singh, S.H.O. Police Station, Bhadaur, along with ASI Amarjit Singh and other police officials was going from village Beehal towards village Beehli after joining Ajaib Singh, a non -offical along with the party. When they were at a some distance from village Beehala they noticed a tractor with a trailor coming from the right side. The tractor was stopped, whereupon, two persons sitting on the tractor ran away. They were subsequently identified as Raj Kumar and Mohinder Singh while Tirlochan Singh who was driving the tractor was duly apprehended. The tractor was found loaded with 50 bags, on which Sub Inspector Harpal Singh made an offer to the accused Tirlochan Singh as provided under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here in after called 'the Act') as to whether he whised to be searched before a Gazetted Officer or a Magistrate. The accused expressed his desire that some officer be summoned to the spot on which Sub Inspector Harpal Singh sent a wireless message to Shri S.S. Chhina, D.S.P., Barnala, who came to the spot and found the accused in custody at the place. He introduced himself to the accused and ordered the search of the tractor trailor on which 50 bags Exhibits P -1 to P -50 containing 40 Kgs 250 grams poppy husk each were recovered. A small quantity of poppy husk from each of the bag was taken out as sample and sealed, whereas the other bags containing the remaining quantity of poppy husk were also duly sealed. The seized contraband as also the tractor trailor were taken into possession vide memo Exhibit PE. Harpal Singh Sub Inspector, thereafter, sent ruqa Ex. PH to the Police Station on the basis of which a formal First Information Report Ex. PH/1 was recorded. On 30th August, 1988, Sub Inspector Harpal Singh again accompanied by ASI Amarjit Singh and Head Constable Satnam Singh arrested Raj Kumar accused after he was produced by Jarnail Singh -PW. Raj Kumar too was interrogated and he revealed that he had kept concealed three bags of poppy husk near a canal bank in front of the liquor vend of village Beehla and offered to get the same recovered. This recovery was also made in the presence of Sh. S.S. Chhina, D.S.P. Mohinder Singh accused was arrested on 5th September, 1988 and after the investigation, all the three accused were challaned for an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called 'the Act'). The trial Court, however, sentenced Tirlochan Singh accused only to imprisonment for a period of ten years and to pay a fine of Rs. One Lac and in default thereof to further undergo R.I. for one year, while the other two accused Raj Kumar and Mohinder Singh were acquitted.

(2.) THE trial Court came to the conclusion that the prosecution case stood proved from the evidence of ASI Amarjit Singh and Sh. S.S. Chhina, D.S.P. now, Superintendent of Police and also by the fact that the recovery effected was of a very large quantity of poppy husk. It was further held that the non - examination of Sub Inspector Harpal Singh was not fatal to the prosecution as it had come on record that he had gone to United States of America and his whereabouts could not be ascertained and in any case, the non -examination of this witness did not prejudice the defence in any manner. The Court also observed that there were no inflexible rule that conviction could not be made on the basis of the testimony of only a single witness, although the Court was required, in such a situation, to examine the evidence of the other official witnesses with more care. The Court further found that the evidence that had come on record with regard to the involvement of Raj Kumar and Mohinder Singh was some what shaky and having held as above, acquitted these two accused of the charge levelled against them. Hence, this appeal at the instance of Tirlochan Singh alone.

(3.) MR . TPS Mann, the learned counsel appearing for the appellant has urged that the non -examination of the Investigating Officer, Harpal Singh Sub Inspector who had presented the challan way back in 1988, was fatal to the prosecution and cast a doubt on its veracity. He has highlighted that Sub Inspector Harpal Singh was present in India on 23rd April, 1991 as would be evident from the three orders of the Court of that date and it was, therefore, incumbent on the prosecution to have bound him down for appearing in Court.