Gurdial Ram vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Gurdial Ram (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Jagadhari dated 9.5.1995. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). On 10.5.1995 the learned trial court sentenced the appellant to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lac. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for three years.

The relevant facts are that on 22.2.1992 Jagdish Singh Nagar, Deputy Superintendent of Police was present at bus stand Yamunanagar. It was in connection with the checking of the terrorists. He was accompanied by HC Raghu Nath and SI Nur Singh. During the checking it was found that the appellant was sitting on a blue bag on the platform meant for buses bound for Ambala. On seeing the police, he started moving after lifting the bag in both hands.

The appellant was stopped. The bag was checked. It was found to be containing poppy husk powder wrapped in a polythene paper. The Deputy Superintendent of Police disclosed his identity and designation to the appellant. The contents were weighed and found to be 10 Kilogram. 200 grams was taken as the sample. The sample and rest of the poppy husk were converted into two separate parcels and sealed with the seal of ''NS''. The seal after use was handed over to SI Nur Singh.

Ruqa was sent to the police station on the basis of that formal first information report was recorded. The Deputy Superintendent of Police deposited the articles in the Malkhana. Subsequently, the representative sample was sent to the Chemical Examiner. Report was received that contents were poppy husk. On receipt of the report of the Chemical Examiner, charge was put in Court.

On 1.2.1994 charge against the appellant was framed with respect to the offence punishable under Section 15 of the Act. The appellant pleaded not guilty and claimed a trial.

In support of its case the prosecution examined five witnesses which comprised of HC Raghu Nath PW2, DSP Jagdish Singh Nagar and SI Nur Singh PW4 (the three witnesses in whose presence the poppy husk is alleged to have been recovered).

The statement of the appellant was recorded and prosecution evidence was put to him in the form of different questions. It was denied by the appellant that recovery of poppy husk was effected from him. He alleged that it is a case of false implication. He was travelling in the bus of Haryana Roadways from Nukar to Chandigarh. Rs. 100/ had been paid to the conductor. The conductor of the bus had told him that he would pay the balance amount after some time. Demand was made at Yamunanagar for the balance amount. There was an altercation. The conductor of the bus called the police officials who were his relatives. Thereupon the appellant was falsely involved in the case.

On appraisal of the evidence, the learned trial Court held that compliance of the provisions of Section 50 of the Act had been made. It was also concluded that prosecution has successfully proved its case beyond all reasonable doubt. The plea that affidavits filed by the formal witnesses were not in accordance with law, was repelled. With these basic findings the impugned judgment and the order of sentence were passed.

In a criminal trial it is the duty of the prosecution to prove its case beyond all reasonable doubt. The accused is entitled to the benefit of doubt if the prosecution case appears to be improbable, necessarily the accused is entitled to the benefit of doubt.

HC Raghu Nath PW3 made a statement in the trial court that he alongwith SI Nur Singh and DSP Jagdish Singh Nagar the present at platform of Bus Stand, Yamunanagar. The appellant was found sitting on the bag. He had tried to move away but was apprehended. The bag was found to contain 10 Kilogram of poppy husk powder. When crossexamined the witness testified that the police station is at a distance of half a kilometer from the bus stand. He admitted that there are book shops and stalls near the place where the incident took place. At that time they all were open. The witness added that hundreds of people had collected at that time besides the employees of the roadways. Jagdish Singh Nagar DSP PW4 in the like manner had stated that the poppy husk powder was recovered from the bag which was with the appellant . But as per this witness no person had collected near the place when the appellant was apprehended. He admitted that several buses were going and coming at that time. SI Nur Singh PW5 made the same statement and admitted that many passengers were coming and going on the bus stand. He also stated that there were several stalls and fruit shops. All the witnesses denied that the appellant was falsely implicated at the instance of the bus conductor.

It is apparent from aforesaid that no public witness had been joined. Joining of public witnesses is not mandatory. But to lend credibility, public witnesses must be joined in the search that is to be effected. This has been accepted as a rule of prudence rather than of law. Facts of each case have to be considered on its own merits. There could be certain circumstances when official witnesses only are available and despite best attempts, public witnesses may well have not joined. That is not so in the present case. It is apparent that there were shops of fruit sellers, tea vendors and book stalls near that place. All those persons have fixed places of business. It would not have been difficult to join public witnesses. Large number of passengers were available at the bus stand at that time. Unfortunately, in the facts of the cases, none of the said available witnesses were joined in the proceedings. Merely stating that none could be joined appears to be not a convincing explanation.

For these reasons, the appeal is accepted and the judgment and order of sentence passed by the learned trial Court are set aside. The appellant is acquitted giving him the benefit of doubt. He be released if not required in any other case.