MEKHAN SINGH Vs. THE STATE OF PUNJAB

JUDGEMENT

(1.) THIS petition is directed against the judgment dated October 19, 1973, rendered by the learned Additional Sessions Judge, Amritsar, whereby he upheld the conviction and sentence of the petitioner awarded to him under section 9 (a) of the Indian Opium Act. by the learned trial Magistrate vide his judgment dated 11th July, 1973. The petitioner was awarded six months R. I. and a fine of Rs. 200/ - and in default of payment of fine he was ordered to further undergo R. I. for two months.

(2.) THE case of the prosecution is that on June 12, 1969, A.S.I. Jairam P.W. 3 was going to village Gujarpur for an excise raid. He was accompanied by A.S.I. Joginder Singh P.W. 1, Excise Inspector Kuldip Singh P.W. 2, and a few other Police officials. When the police party was present on Ajnala Dera Baba Nanak road near the turning of Jagdev, the petitioner was seen coming from the opposite direction. He was carrying a jhola in his right hand He tried to retreat on seeing the police party. This brought suspicion in the minds of the police officers. They chased the prisoner, apprehended him and searched the jhola (Ex. P. 2), which he was carrying. From this jhola (Ex P. 2), 1690 grams of opium was recovered. At the trial, the prosecution produced only three witnesses namely Jogmder Singh P.W. 1, who is a police official ; Kuldip Singh P.W. 2 who is an Excise Inspector ; and A.S.I. Jairam, P.W. 3. Kuldip Singh P.W. 2 has stated that sample of the opium was sealed with his seal and thereafter the seal was kept by him. The learned counsel for the petitioner relied upon a decision rendered by me in Gurcharan Singh v. The State of Punjab, 1974 C.L.R. 171 decided on July 17, 1972 in which I held that the seal should normally be given to an independent person But there was an additional circumstance in that case. There was no evidence to show when the sample was handed over by the investigating officer to the Officer In -charge of the Malkhana. That judgment in my opinion, should not be treated as an authority for all cases. In this case, however, it is in evidence that the petitioner had sent some telegrams against the investigating officer Jairam, A.S.I., P.W. 3. When questioned in cross -examination, he denied that he had falsely implicated the petitioner because he had sent some complaints against him. The petitioner examined D.W. 1 Mehar Singh, Record Keeper, Complaint Branch, office of the Senior Superintendent of Police, Amritsar, who stated that he received a telegram (Ex. DA) from the Deputy Commissioner's Office which was entered at Serial No 1385 -P dated May 19, 1969 and the said telegram was sent to S.H.O. Ajnala Makhan Singh was the sender of that telegram. Now, the investigating officer in these circumstances, could not have been unaware of this telegram sent by the petitioner But when questioned on this point, he made evasive replies. When an investigating officer is inimically disposed towards the petitioner and the only other witnesses are a police official and an Excise Inspector, it does become some what difficult to accept the prosecution story as wholly truthful. In these circumstances, the retention of the seal by the Excise Inspector assumes added importance. I am clearly of the view that the case against the petitioner does not stand established beyond reasonable doubt. This is accordingly allowed and the petitioner is acquitted of the charge. The fine, if paid, shall be returned to him.