Jaimal Singh vs State of Punjab

A. S. Nehra, J.

Jaimal Singh, petitioner and one Sukha Singh were convicted under Section 9 of the Opium Act, on June 4, 1985 by the Judicial Magistrate, Ist Class. Patiala. Petitioner and Sukha Singh filed appeals. Appeal of Sukha Singh was accepted but the appeal of petitioner was dismissed on June 5, 1986 by the Additional Sessions Judge. Hence, this Revision Petition.

In brief, the prosecution story is as under :

"On 871980 ASI Jagdish Chander alongwith Constables Jai Ram, Gurpal Singh, Sukhvinder Singh and Ram Dhan were present in connection with Naka Bandi on Ghagga Bhawanigarh road and they were in a Government Jeep No. PUC 636 which was driven by Constable Tarsem Singh. At about 2.15 A.M. a Car came from the side of village Nawan Gaon which was stopped. On enquiry, the driver of the Car told his name as Jaimal Singh son of Pala Singh, resident of Sangrur. The other person who was sitting by his side told his name as Sukha Singh son of Shingara Singh resident of Daba Kheri. They were asked to come down. Jaimal Singh came out whereas Sukha Singh ran away from the left side of the Car. On search of the Car one Jhola (bag) was found lying on the front seat in between Sukha Singh and Jaimal Singh where they were sitting. Opium wrapped in a glazed paper was found in it. On further search of the car four bags of poppy husk were found lying on the rear seat of the car. On further search three bags more of poppy husk were recovered from the dicky of the Car. Two spare wheels of the Car and one jack was also recovered from the dicky of the Car. On personal search of Jaimal Singh, one watch and Rs. 20/ were found from his possession. On weighing, the opium came to be five kilograms. 20 grams of opium was separated as sample. The remaining opium and the sample were sealed with the seal bearing impression J.C. Out of seven bags of poppy husk, 200 grams was separated as sample from each bag. The remaining poppy husk was weighed which came to be 35 Kilo 800 grams in each gunny bag. Those were all taken into possession vide recovery Memo. Ex. PA. Opium as well as samples were also taken into possession vide recovery Memo Ex. PA. Two spare wheels of the Car, one lack, a sum of Rs. 20/, Insurance, receipt of Challan, key bunch having five keys and Car PNT 8331 were also taken into possession vide recovery Memo Ex. PA which was attested by the witnesses. Ruqa Ex. PB was sent through Constable Jai Ram to the Police Station for the registration of the case on the basis of which a formal FIR Ex PB/1 was got registered by SI Balbir Singh. Rough site plan Ex. PC was prepared at the spot. Statements of the witnesses were recorded at the spot. Insurance is Ex. P1, Challan Chit is Ex. P2. Sealed Samples are Ex. P3 and Ex. P4 and Opium is Ex. P5. The bags containing poppy husk are Ex. P6 to Ex. P12, spare wheels (two) are Ex. P13 and Ex P14 and jack is Ex. P15. After completion of investigation the challan was put in the Court by SI Balbir Singh."

In order to prove its case, the prosecution examined Gurpal Singh Constable, PW, Jagdish Tandon, PW2 and Mr. Usha R. Sharma, PW3. Documents Ex.P.E. and Ex PF, report of chemical examiner and affidavits of Gurmail Singh, Head Constable and Sukhminder Singh, Constable as Ex. PH and Ex PG respectively were also tendered in evidence.

When examined under Section 313, Criminal Procedure Code, the petitioner denied the corrections of the prosecution allegations and pleaded of the himself to be innocent. Petitioner has stated that on the morning of July 7, 1980, Investigating Officer of this case, Jagdish Tandon, came to his residence at village Sanaur and asked him to send his car for 2/3 days but he told him that the driver of the car is not available. The Investigating Officer took him from his house to the Police Station and falsely implicated him in this case. He has further stated that he had Rs. 4000/ with him when he was taken to the police station and Investigating Officer took away Rs. 4000/ from him. He further stated that the Investigating officer had falsely involved him to save his own skin as he had misused his money of Rs. 4000/.

Learned counsel for the petitioner has submitted that the prosecution version is unnatural and that from the statements of the witnesses, it is quite clear that the recovery has not been effected in the manner as alleged by the prosecution. In this regard, he has pointed out that Gurpal Singh Constable PWI has stated that poppy husk containing in each bag was weighed in 12 attempts and that similar is the statement of Jagdish Chand, SI PW2. He further stated the seven bags of poppy husk were recovered from the car according to the case of the prosecution, which means that poppy husk was weighed in 84 attempts. He has further pointed out that according to the case of the prosecution car arrived at the alleged place of recovery at 2.15 A.M. and ruqa was sent at 3.00 A.M. and it also took time for weighing the opium. According to him the time was also consumed for sealing the samples and the remaining opium and remaining poppy husk. He further stated that according to the case of the prosecution all this took place between 2.15 A.M. to 3.00 A.M. and that in a period so 45 minutes, opium contained in seven bags cannot be weighed and scaled. It is also argued that even if one minute is taken in weighing the poppy husk for one attempt then 84 minutes would be taken by him in order to weigh the whole poppy husk, and thereafter, samples and the remaining poppy husk were separately sealed and the opium was also to be weighed. Therefore, according to learned counsel, the prosecution version is unnatural and no reliance can be placed upon it.

It is true that according to the statements of the witnesses each bag containing poppy husk was weighed in 12 attempts but there is no exact time given by the prosecution witnesses regarding the arrival of the car at the place of the alleged recovery. The time given by the witnesses regarding the arrival of the car has been given approximately as 2.15 A.M. It is just possible that the car might have arrived at 12. 15 or 12.30 A.M. So, it cannot be said that all the formalities were completed by the witnesses within a period of 45 minutes. In this regard, I find support from the fact that according to the statement of Gurpal Singh, Constable, PW9. They started from the police station at 10. 15 P.M. in jeep and they reached at the place of recovery at 11 P.M. Jagdish Chand Tandon, STI PW2 has also stated that they started from the police station at 10. 15 P. M. The place of recovery is at a distance of 11/2 Kms. from the police station according to him. They went in a Jeep. Thus, they must have reached at the place of recovery within 15 minutes. From the statements of the witnesses, it is fully established that they were present at the place of recovery by 11 p.m. The car reached there at any time, afterwards. As discussed above, the time regarding the arrival of the car given by the witnesses at the place of recovery is approximate time. Hence, it cannot be said that it was not possible to complete all the formalities of weighing and sealing the opium and poppy husk at the place of recovery in the manner alleged by the prosecution.

The second submission made by the learned counsel for the petitioner is that no independent witness was joined by the police in the investigation of this case that it has come on record that there are shops and petrol pump near the place of recovery and that no witness was joined by the police when they started from the police station for holding Nakabandi. There is no doubt that no independent witness has been joined by the police in the investigation of this case. So far as joining of independent witnesses in the police party at the time of departure of the police party from the police station is concerned, there is nothing on the record that the police party started from the police station for the purpose of holding Nakabandi at the place of recovery. No doubt the police party held Nakabandi at the place of alleged recovery but it was not suggested to any of the witnesses that they started from the police station for purpose of holding nakabandi. It be possible that the police received secret information after their departure from the police station and when they reached near the place of recovery, regarding the arrival of the car the question of joining independent witness in the police party from the police station did not arise. So far as joining of independent witness from the place of recovery is concerned, no doubt it has come on record that there are shops and patrol pump near the place of recovery but, it has come on record that Jagdish Chand who is the Investigator attempted to join witnesses from the place of recovery but the independent witnesses could not be joined because they refused to join in the police party. Moreover, the recovery was made near about 2.00 AM and at that time no witness was available to the police for the purpose of joining. Thus nonjoining of any independent witness in view of the above said circumstances do not make the case of the prosecution in any way doubtful. The police officials cannot be disbelieved simply because no independent witness was joined. It is an established law that police officials are as good witnesses as the other independent witnesses. The only precaution to be taken regarding the evidence of the police official is that it should be carefully scrutinished. Unless there is something on the record, which would make evidence of police officials in any way unreliable, they cannot be disbelieved. In the present case, there is nothing on the record to disbelieve them so far as the case of the petitioner is concerned and the witnesses have no motive to depose falsely against him. The defence version given by the petitioner is not convincing. The defence version given by the petitioner is that ASI came to his house at village Sanaur and demanded a car from him; that the petitioner told him that he could not say whether the car would be available or not without enquiring it from his driver; that upon this Jagdish Chand, ASI, took him to the police station; that he was having Rs. 4000/ with him and that this amount was taken away by Jagdish Chand, ASI and thereafter false case was foisted on him. He has also examined in his defence Malook Singh DW in order to support his defence version. In my opinion no reliance can be placed upon the statement of Malook Singh DW1. Malook Singh is not residing in the house of the petitioner. No doubt he is a relation of the petitioner, but his presence at the place of petitioner is not established. Further, it is nowhere suggested to any of the witnesses examined by the prosecution that the petitioner was taken away by Jagdish Chand, ASI in the presence of Malook Singh. Malook Singh is a close relation of the petitioner. Hence, it is natural for him to support the defence version. It is not believable that a police official of police station, Samana, would go to, village Sanaur in order to get a car from the petitioner. There was no dearth of cars at Samana. Had the investigator wanted to get a car, there would have been no difficulty for him to get the same at Samana. It is also not believable that the police official would plant such a heavy quantity of poppy husk and opium on a person simply because he refused to give the car to the Police Officer.

It is also argued by the learned counsel for the petitioner that the learned trial Magistrate has illegally ordered the confiscation of the car and that the learned trial Court should have given notice prior to passing the order of confiscation. I do no agree with the learned counsel for the petitioner on this point. In the present case, the car is owned by the petitioner and he was found in possession of opium and poppy husk. Thus, it cannot be said that he was not having any knowledge that car was being used for carrying contraband articles. Notice to be owner of the car is required only in those cases where the opium is being carried without the knowledge of the owner and in case where the car is being driven by any other person and not by owner himself. In this case, the was being driven by the petitioner, Jaimal Singh, and he was found in possession of opium and poppy husk. Hence, there was no need to give notice to the petitioner, as to why the car should not be confiscated.

The prosecution case is proved beyond any doubt against the petitioner Hence, the conviction and sentence of the petitioner are maintained and the revision petition is dismissed.