SURJIT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE present petition has been filed by Surjit Singh (hereinafter described as the petitioner) directed against the judgment and the order of sentence passed by learned Judicial Magistrate, Moga, dated November 08, 1986 and that of the learned Additional Sessions Judge, Faridkot dated December 08, 1987. The learned Judicial Magistrate had held the petitioner guilty of the offence punishable under Section 9 of the Opium Act and thereupon sentenced him to undergo rigorous imprisonment for two years and pay a fine of Rs. 1,000/-. In default of payment of fine, he was to undergo further rigorous imprisonment for three months. The appeal filed by the petitioner was dismissed by the learned Additional Sessions Judge, but the sentence was reduced to one year rigorous imprisonment without interfering with the quantum of fine.

(2.) THE relevant facts of the prosecution case are that on November 01, 1982, ASI Harjit Singh of Police Station Bagha Purana alongwith some other police officials was on excise checking duty. The police party was going from village Sekha Kalan towards village Thathi Bahi. The petitioner was seen coming from the other side. On noticing the police party, he tried to avoid them. On suspicion he was stopped, his personal search was conducted and five kilogram opium wrapped in a glazed paper was recovered from the bag. The bag was being carried by the petitioner in his right hand. Ten grams of opium was taken as the sample. The sample and the rest of the opium was converted in two separate parcels and was sealed with the seal 'HS', both were taken into possession vide the recovery memo. Rukka was sent to the police station, on the basis of which formal First Information Report was recorded. Rough site plan was prepared. The case property was deposited in the 'Malkhana'. Subsequently, the representative sample was sent to the Chemical Examiner, who opined that it was opium. This led to the filing of the report under Section 173 Code of Criminal Procedure.

(3.) LEARNED counsel for the petitioner highlighted the fact that Muharar Head Constable Sant Parkash Singh was on leave on November 01, 1982. A report to this effect has been made even in the daily diary, copy of which is Exhibit DZ/1. Thus the property as such could not be deposited with him.