GURBACHAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE appellant was an accused in Session Case No. 60 of 1993 decided by learned Additional Sessions Judge, Amritsar. The appellant was tried for the offence under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'). The appellant was held guilty and was sentenced to undergo R.I. for ten years and to pay a fine of Rs. one lac and in default of payment of fine, he was ordered to further undergo R.I. for one year. Being aggrieved by the said judgment of conviction and order of sentence, the appellant has come up before this Court in appeal.

(2.) I have heard learned counsel for the appellant and learned Assistant Advocate General, Punjab for the State.

(3.) THE learned counsel for the appellant argued that no independent witness has been joined at the time of search. In this regard learned Assistant Advocate General has argued that the recovery was made at 6.30 a.m. from a deserted place at a river bank and, therefore, the people cannot be expected there and it was a chance recovery and, therefore, the non-joining of the independent witness at the time of raid will not be fatal to the prosecution case. Learned counsel for the appellant has relied on the judgment in the case of Ram Phal v. State of Haryana, 1996(2) Recent Criminal Reports 522, in which it is held by this court that even though statute does not make it obligatory but as a rule of prudence the Police Officer should carry out search in presence of respectable witnesses if possible and the Court will be extremely reluctant to uphold prosecution case which is solely based on recovery made as a result of search not witnessed by independent and respectable persons unless it was unreasonable and impracticable to procure the presence of such witnesses. Learned counsel for the appellant has also relied on the case of Kashmiri Lal v. State of Punjab, 1994(2) Recent C.R. 440. In that case it was held that non-joining of independent witness during day time introduces as infirmity in the prosecution version and leads to the conclusion that reasonable possibility of false implication of the accused cannot be ruled out. As against this learned Assistant Advocate General, Punjab relied on the case of Malkiat Singh v. State of Punjab, 1995(1) Recent C.R. 637. It is held by this Court in the said case that even if there was no independent witness when there is no inconsistency in the evidence of the witnesses, the conviction could be upheld even though it was on the basis of evidence of official witnesses because there was no animus on the part of the official witnesses to falsely implicate the accused by planting huge quantity of poppy husk.