PARSHOTAM DASS Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS appeal is directed against the conviction and sentence imposed by the learned ASJ Barnala in Sessions case No. 104 of 88 date 5.12.89 on the accused-appellant for the offence under Section 15 of the NDPS Act.

(2.) ACCORDING to the case of the prosecution on 17.7.88 at about 11.15 a.m. poppy husk weighing 20 kgs and 250 grams was recovered from the possession of the accused. When the police party was going towards village Saidowal from the canal bridge of village Moom and on the basis of the recovery a case was registered against the accused and after completion of the investigation charge sheet was filed. It is further averred in the charge-sheet that SI Amarjit Singh told the accused that he intended to search the gunny bags and whether the accused so desires to be searched in the presence of a Gazetted Officer or a Magistrate would be co-opted but the accused deposed confidence in Amarjit Singh and asked him to search the gunny bags which resulted in the recovery of poppy husk. After committal the learned ASJ Barnala framed the charge against the accused under Section 15 of the Act. In order to prove the guilt of the accused the prosecution examined only 2 witnesses. After closure of the evidence of the prosecution the accused was examined under Section 313 Cr.P.C. who denied the recovery of poppy husk from his possession. Further it is stated that when he was travelling by bus from Moga to Bhawaningarh the bus stopped near the canal bridge Tallewal and he was sitting on the roof of the bus and the constable and the Thanedar made him to come down from the roof of the bus and removed a sum of Rs. 70/- from his pocket and demanded Rs. 1000/- more for letting him off. Then he was taken to police station Bhadaur. He stated that he has been falsely implicated in this case. The accused did not choose to examine any witness in defence. On a consideration of the evidence on record the learned ASJ Barnala convicted the accused for the offence under Section 15 of the Act and sentenced him to undergo RI for a period of 10 years and a fine of Rs. 1 lac. Aggrieved by the said conviction and sentence imposed on him by the learned ASJ Barnala the accused preferrerd this appeal.

(3.) AT this stage it cannot be said that no independent witness has been examined. At the same time it cannot be said that the evidence of the police officials have to be excluded from consideration. It is for the Court to decide whether the version given by the police officials is reliable and can be accepted. PW1 is the HC. According to him the accused was carrying a gunny bag on his head and on seeing the police he got confused. Then he was apprehended and the accused was asked if he wanted to the searched in the presence of a Magistrate or a Gazetted Officer but the accused replied that Thandedar could search him. Thereafter gunny bag was searched and poppy husk was found in the said gunny bag. Out of which 250 grams was taken as a sample. The evidence of PW2 Amarjit Singh who effected the search also shows that he told the accused that he intended to search the gunny bag and enquired from the accused whether he wanted to be searched in the presence of a Magistrate or a Gazetted Officer but there is nothing on record to show that any said offer was made. The record also does not show that such an offer was made and the accused offered to be searched by PW2 himself. When there is nothing on record it is for the police to adduce an independent evidence to show the recovery but no such evidence is forthcoming. After going through the evidence of PWs 1 and 2 I am of the opinion that it is unsafe to rely upon their evidence to convict the accused.