FAQIR CHAND Vs. THE STATE OF PUNJAB

JUDGEMENT

(1.) FAQIR Chand was convicted under section 9 of the Opium Act and sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 100/ -, or in default of payment fine to further unergo two months rigorous imprisonment by the order dated 4th September, 1973 of the Judicial Magistrate 1st Class, Ludhiana (Shri Shamsher Singh). An appeal filed by him against his aforesaid conviction and sentence was dismissed by the judgment dated 3rd November, 1973 of the Court of II Additional Sessions Judge, Ludhiana (Shri H.L. Randev). Faqir Chand, therefore has come up in revision to this Court.

(2.) THE facts of the case, in brief, are that on 25th January, 1971, H.C. Tarsem Singh P.W. 1 of Police Station Saddar Ludhiana, accompanied by constables, including Constable Chanda Singh P.W. 2, was present in the by pass Chowk on the road leading to village Bahadurpur in connection with patrol and excise checking. At about 8.45 a.m., Faqir Chand came there from the side of new vegetable market. On suspicion, he was stopped. On his personal search by H.C. Tarsem P.W., 500 grams of opium wrapped in a glazed paper was received from the Jhola which Faqir Chand accused was then carrying with him. Some opium out of the recovered opium was taken as a sample by the Head Constable Thereafter, the sample opium and the remaining opium were duly sealed with the seal bearing impression 'TS'. He also prepared the recovery memo. Exhibit P.A. in respect of this recovery. After that H.C. Tarsem Singh drew up the ruqa and sent the same to the Police State Saddar, Ludhiana where on the basis of which the formal First Information Report, Exhibit P.B./1, was registered against the accused . The sealed packet containing the sample opium was sent to the Chemical Examiner, who vide his report Exhibit P.D., opined that the substance contained in that sample was opium. After completion of the investigation, the accused was sent up for trial.

(3.) I have heard the learned counsel for the parties and have fully appreciated the same in the light of the evidence brought on the file on behalf of the prosecution. At the very outset, it has been vehemently argued by the learned counsel for the petitioner that some independent persons were easily available at the place where the alleged recovery of opium was made from the petitioners and since none of them was made to witness that recovery, the conviction and sentence of the petitioner, recorded simply on the basis of the evidence of two official witnesses, namely, H.C. Tarsem Singh and Constable Chanda Singh P.Ws., who were naturally interested in the success of the case, are not sustainable at all. I find a good deal of force in the above contention of the learned counsel. Constable Chanda Singh has admitted in his cross -examination that there were two wooden cabins in which tea shops were being run at the place of recovery. Since it was about 8.45 A.M. some persons must be present at the fail two shops at that time, or at least the proprietors of those shops must be there. No person from those shops was joined in the police party before H.C. Tarsem Singh had conducted personal search of Faqir Chand. Accordingly, the conduct of H.C. Tarsem Singh in not joining with him independent witnesses, although available, renders the prosecution case highly doubtful against the petitioner. This view finds support from Ram Narain v. The State, (1974)1 Cri.L.R. 434, in which it has been held as under: - -