Balkar Singh and Another vs State of Punjab

A.N. Jindal, J.—Balkar Singh and Jinder Singh, accused-Petitioners (hereinafter referred to as the Petitioner) had been arrested on the

allegations that they were found in possession of 50 kilograms of opium. Consequently, they faced trial; convicted u/s 9 of the Opium Act (for

short the Act) vide judgment dated 25.11.1991 passed by Chief Judicial Magistrate, Amritsar and were sentenced to undergo rigorous

imprisonment for three years and pay a fine of Rs. 500/-, each, and in default of payment of fine, to undergo further rigorous imprisonment for

three months. Appeal challenging the aforesaid judgment, preferred before the Additional Sessions Judge, Amritsar also failed.

Both the Petitioners are hailing from village Naushehra Dhallan (adjacent to Indo-Pak border), in the district of Amritsar. On 17.3.1983 Sub

Inspector Randhir Singh of Police Station Gharinda along with other police officials was present on the culvert of the drain in the area of Cheema

Kalan. At about 2.30 a.m., Balkar Singh-accused while holding the reins of a mare and Jinder Singh while sitting over it, were coming from the

side of Pakistan border. On seeing the police party, Balkar Singh-accused, as identified by Sub Inspector Randhir Singh, succeeded in escaping

whereas, Jinder Singh-accused was arrested on the spot. On search of the gunny bag hanging over the mare, it was found containing 50 kilograms

of opium, out of which, 50 grams of opium was taken out as sample. The sample and the remnant of opium were put in tin boxes, which were duly

sealed with the seal bearing impression `RS'' and were taken into possession vide memo Ex PA. Ruqa Ex. PB was sent to the Police Station, upon

which, FIR Ex. PB/1 was recorded; site plan Ex. PC was prepared and statements of the witnesses were recorded. The sample sent to the

Chemical Examiner was found to be `opium''. On completion of the investigation, the challan was presented.

The Petitioners were charged u/s 9 of the Act, to which they pleaded not guilty and claimed trial.

On commencement of the trial, the prosecution examined Sub Inspector Randhir Singh (PW-1), Head Constable Surinder Singh (PW-2) and

Constable Dilbagh Singh (PW-3), besides tendering affidavit (Ex. PE) of Constable Dilbagh Singh and affidavit (Ex. PF) of MHC Pritam Singh.

When examined u/s 313 of the Code of Criminal Procedure, both the Petitioners denied all the circumstances appearing against them and

pleaded their false implication in the case.

To substantiate their version, the accused examined Bachan Singh (DW-1), Ajit Singh (DW-2), Constable Dilbagh Singh (DW-3) and

Constable Gurdial Singh (PW-4). The trial ended in conviction and their appeal was also dismissed. Hence, this petition.

Arguments heard and records perused.

The main stake of the arguments, advanced by Mr. P.S. Hundal, learned Counsel representing the Petitioners is that the case is of doubtful

identity. Balkar Singh-Petitioner, though not arrested on the spot, was implicated in the case on suspicion; no test-identification parade was

conducted and nothing has come on record as to how Sub Inspector Randhir Singh knew Balkar Singh- Petitioner. Having deliberated over the

matter, no force is found in the argument. Sub Inspector Randhir Singh when was subjected to cross-examination, categorically testified that

Balkar Singh-Petitioner was known to him, as, on his visit to village Naushehra Dhallan, he had been meeting him. He got verified his father''s name

from Petitioner Jinder Singh. From the testimony of both the witnesses, it transpires that Sub Inspector Randhir Singh knew Balkar Singh since

earlier. He was identified by both the witnesses in the court; he was seen by Sub Inspector Randhir Singh in torch light and his identity was further

verified from Jinder Singh-Petitioner. The name of Balkar Singh finds mention in the ruqa recorded at the very initial stage; the witnesses had

opportunity to see them at the spot and, therefore, named them in the initial document and, thus, the question of test identification parade did not

arise. Moreover, having gone through the statements of both the witnesses (PW-1 SI Randhir Singh and PW-2 HC Surinder Singh, who are quite

consistent in deposition, I have no doubt about the identity of Balkar Singh-Petitioner. At the same time, Joginder Singh-Petitioner was identified

and arrested at the spot.

Recovery of 50 kilograms of opium was effected, which was in the control of both the Petitioners. The absconding of Balkar Singh-Petitioner

also attributes his knowledge regarding the contents of the gunny bag, which they were carrying on the back of the mare. Therefore, I have no

hesitation to hold that the Petitioners were in conscious possession of the contraband, carried by them. It may be further observed that the

testimonies of the police officers cannot be doubted for their status as such. They are as good witnesses as the private witnesses are, for the reason

that no enmity or animus has been alleged against the witnesses for falsely involving the Petitioners in the present case and apart from it, such a

heavy quantity of opium could not be planted upon the Petitioners from its own source by the prosecution.

No merit can be traced in the other argument that affidavit Ex. PE filed by Constable Dilbagh Singh bears the date of 21.3.1983, containing the

fact that he was handed over the case property for depositing the same with the office of the Chemical Examiner, but actually the case property

was sent to the Chemical Examiner on 11.4.1983. In this regard, it would be relevant to mention that after tendering the affidavit in evidence,

Constable Dilbagh Singh was summoned and examined in Court, wherein, he clarified the doubts arising out of the affidavit. No doubt, affidavit

(Ex. PE) bears the date of handing over the sample as `21.3.1983'', but the same appears to be the result of clerical mistake as he while appearing

in the witness box has clearly stated that the sample was handed over to him on 11.4.1983. Once, the prosecution had been allowed to lead

additional evidence, it cannot be argued at this stage that the same should not have been allowed as the same amounted to filling up the lacunae in

the prosecution case. It was only after satisfying its conscience that the trial Court allowed the prosecution to lead additional evidence, for

examining Dilbagh Singh (PW-3). Nevertheless, if the records of the trial Court are peeped into, then the argument as advanced by learned

Counsel for the Petitioners appears to be insignificant for the reasons; first of all that there are two affidavits of Dilbagh Singh on the file; one is Ex.

PE which was attested on 24.11.1988 and the second is Ex. DW3/A (produced by the Petitioners themselves), which was attested on 4.1.1984,

which reveals that the sample was taken by him on 11.4.1983. The affidavit Ex. DW3/A is supported by affidavit Ex. PF submitted by MHC

Pritam Singh and accepted in evidence. The report Ex. PD of the Assistant Chemical Examiner, Amritsar also indicates that the case property was

sent to his office on 11.4.1983. Constable Dilbagh Singh while appearing in the witness box as PW-3 has affirmed that he took the sample on

11.4.1983. Further more, the Assistant Chemical Examiner in his report Ex. PD has certified that the seals of the sample remained intact and tallied

with the sample seal. This factor also impels me to conclude that the mentioning of date as `21.3.1983'' in the affidavit Ex. PE was just a clerical

mistake.

Non-joining of independent witnesses by the Investigating Officer at the time of raid also does not affect the substratum of the prosecution case

as due efforts were made by the Investigating Officer to join the independent witnesses, but nobody joined. PW-2 HC Surinder Singh has

categorically stated in this regard. There is no hard and fast rule that the conviction cannot be based on the testimonies of only the official

witnesses, but the only safeguard to be applied in such cases is that the trial Court has to scrutinise the testimonies of the official witnesses with

greater care and caution, so as to rule out any false implication.

Having minutely gone through the statements of Sub Inspector Randhir Singh and HC Surinder Singh, PW-1 and PW-2, respectively, it would

be safe to say that they are quite consistent on all material points and they had no animus against the Petitioners to implicate them falsely and such a

heavy quantity of opium could not be planted on them from their own sources. At the same time, no plausible defence has been set up by the

Petitioners for establishing their innocence. While taking the case from another angle, both the courts below have concurrently held the Petitioners

guilty and no argument worth the name, has been put forward, so to point out any legal infirmity in the procedure or the conduct of the trial, so as

to warrant interference by this Court.

Consequently, finding no merit in the petition, the same is hereby dismissed.