MOHINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner has been convicted under Section 9 of the Opium and has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/- and in default of payment of fine, the petitioner was to further undergo rigorous imprisonment for three months by the trial Court. His appeal having failed before the Additional Sessions Judge, he has come in revision and has challenged the order of conviction and sentence of both the Courts below.

(2.) POLICE party consisting of Baldev Singh Head Constable. constables Jagat Singh, Surbir Singh and Harnail Singh was proceeding towards G.T. Road Sirhind through the bye pass there and the petitioner was stopped with a Jhola in his right in his right hand. The petitioner while coming from the side of village Brahman Majra was intercepted near railway crossing and on the search being made three kilograms of opium was recovered. Out of the same 20 grams was taken out as sample. The sample as well as the residue were sealed in the two different sealed parcels bearing the seal of 'B.S.' and seizure memo Exhibit PA was prepared. Ruqa Exhibit PB incorporating the facts were sent to the police station and first information report Exhibit PC was recorded by Harjit Singh M.H.C. The rough site plan Exhibit PD was prepared along with the marginal notes on it. The opium was ultimately sent for chemical analysis and the petitioner was challaned and tried for the said offence. The prosecution examined Jagat Singh constable (PW1) and Head Constable Baldev Singh (PW2) and tendered report of the Chemical Examiner Exhibit PE and affidavits Exhibit PF of constable Sadhu Singh and Exhibit PG of Head Constable Harjit Singh in evidence. The conviction has been recorded relying upon the testimony of two official witnesses on the principle that official witnesses can be trustworthy as other witnesses and official designation itself is not sufficient to taint their evidence. The learned counsel for the petitioner has argued that the police party did not join any public witness although such witnesses were available and, therefore, the testimony of police officials only should not have been relied upon. According to constable Jagat Singh (PW1) the party was proceeding on the bye-pass towards G.T.Road after crossing the octroi post. Similarly Baldev Singh (PW2) has corroborated the statement of PW1 Jagat Singh constable. In view of the fact that from police post which is situate within Sirhind Mandi itself, till the petitioner was arrested, if cannot be believed that nobody met the raiding party because from the police post, the party had to come through a road and then to reach the octroi post and all around there are many shops and residential buildings and there must be traffic on the road at the time of recovery. The police party did not make any attempt to join any witness from the public. The learned counsel for the petitioner has cited Joginder Singh v. The State of Punjab, 1986(1) C.L.R. 443 and Bachittar Singh v. The State of Punjab 1983(2) C.L.R. 662, wherein stress has been laid on the principle that where no independent witness from the locality was joined at the time of effecting recovery by the police in spite of opportunity to do so, this fact casts a doubt on the testimony of official witnesses and in such a situation the accused is entitled of doubt and, therefore, this revision petition is accepted. The order or conviction and sentence awarded by the Courts below are set aside and he is acquitted of the charge. Fine if paid, be refunded to the petitioner. Petition accepted.