Dalip Singh vs State of Punjab

Harbans Singh Rai, J.

Dalip Singh petitioner and his two sons Harpal Singh and Angrej Singh, petitioners, were convicted by Shri M.L. Sarpal, Judicial Magistrate Ist Class, Gidderbaha under Section 9 of the Opium Act, 1878 and sentenced to undergo R.I, for 11/2 year and to pay a fine of Rs. 1000/. each and in default of payment of fine to further undergo R.I. for six months vide his judgment dated 20121984. Their appeal was dismissed by Shri K. S. Kauldhar. Additional Sessions Judge, Faridkot vide his order dated 2051985. Feeling aggrieved, they have filed this revision.

The facts leading to their conviction are that on 3091990, S. 1. Jaswant Singh in the company of other police officials was coming to police station Lambi from village Mahni Khera after patrolling. A secret information was received, by S.I. Jaswant Singh. On the basis of the secret information. S. 1. Jaswant Singh reached at the farm house of Dalip Singh situated in his fields outside village Mahni Khera. House search was conducted. Opium wrapped in a paper lying in a gunny bag was recovered from an iron box lying in one of the rooms of the house. it was weighed and it turned out to be 9 kgs 200 grams. S.I. Jaswant Singh sent ASI Gian Chand to bring some respectable persons but none was ready to join the raid. The opium was taken into possession and sample out of the bulk opium was separated and sent for analysis. After completion of the investigation the petitioners were challaned, tried, convicted and sentenced, as mentioned above.

I have heard the learned counsel for the parties and gone through the evidence. Only two prosecution witnesses have been examined in support of the prosecution case PWI ASI Jai Chand and PW2 Inspector Jaswant Singh. According to the prosecution, the house from where the opium was recovered, belonged to Dalip Singh. Learned counsel for the petitioner has argued that there is no evidence that the house from where the opium was recovered was in possession of all the 3 accused as the prosecution has not examined any witness to depose about the possession. He has further brought to my notice that Jai Chand ASI even does not know how many sons Dalip Singh has got or where they are residing. Similarly, Jaswant Singh P.W. Investigating Officer also does not have any personal knowledge. Accused in their defence have examined a large number of the witnesses to show that Harpal Singh and Angrej Singh petitioners are not residing in this house as they are residing in a house situated in the village.

I have considered the argument and find some force in the same. According to the prosecution case, the secret information was that certain opium can be recovered from Dalip Singh and PWs also say that house of Dalip Singh was raided on that day. This house is situated in the fields. The only incriminating circumstance against Harpal Singh and Angrej Singh is that they were present there. In the absence of any evidence to show that they also resided there, their more presence in a house situated in the fields of person who is related to them will not lead to the presumption that house is also in their occupation and possession. It is in evidence of P.W. 2 Inspector Jaswant Singh that the Police party was led by him to the house from where the opium was recovered. The prosecution should have examined some witness to show that all the three petitioners reside in the house. Even the" 2 PWs examined by the prosecution do not say that all the three petitioners reside in the house. Their version only is that they were present there. Mere presence will not connect Harpal Singh and Angrej Singh petitioners with the possession of the opium. In the absence of any evidence to show that the house from where to opium was recovered was in occupation or in Possession of Harpal Singh and Angrej Singh or that they were residing there, it will not be safe to hold them responsible for the possession of the opium recovered. Harpal Singh is aged 27 years and Angrej Singh is aged 23 years. There is nothing in the prosecution evidence as to whether they are married or whether the other family members of Dalip Singh are residing there. Taking all these circumstances of the case into consideration, I am of the view that Harpal Singh and Angrej Singh petitioners cannot be convicted for the possession of the opium. They are entitled to the benefit of doubt. I accept :heir appeal and acquit them of the charge setting aside their conviction and sentence.

Dalip Singh petitioner is more than 70 years of age and the incident took place in 1980, I do not think it will be in the interest of justice to send an old man back to bail after eight years of the incident. Taking his age and the fact that the incident is more than eight years old, I reduce the sentence of imprisonment of Dalip Singh to one already undergone. However the sentence of fine of Rs. 1000/ shall stand maintained. This revision is disposed of accordingly.

Revision allowed