Kahan Chand vs State of Punjab

B.S. Yadav, J.

The prosecution story, in brief, is that on 19th May, 1978, at about 9 a.m., ASI Avtar Singh (PW2) who in those days was posted as Incharge of Police Post Rampura, accompanied by some constables, was present on the bridge of the minor. SI Swaran Singh who in those days was posted as Station House Officer, Rampura accompanied by some constables, reached that bridge in a jeep. SI Swaran Singh joined ASI Avtar Singh and the constables with him in his party and they left in the jeep in connection with Patrol duty. When they reached the Railway level crossing, one Teja Singh met them. SI Swaran Singh starting chatting with him. In the meantime, some person came there and supplied secret information to the SubInspector. On the basis of that information, SI Swaran Singh sent Ruka Ex. PF to Police Station Rampura (Phool). On its basis formal First Information Report Ex. PF/1 was recorded by A/M. H.C. Gurdeep Singh at 10.40 a.m. SI Swaran Singh joined Teja Singh also in the raiding party which left in the jeep towards the place told by the informer. When they had covered a distance of about 11\\2 furlongs from Sabzi Mandi of Rampura Phool, the petitioner Kahan Chand was seen coming through the fields, along a Pagdandi, On seeing the Police party the petitioner tried to retrace, but was apprehended. He was found carrying gunny bag Ex. P4 on his head. When the bag was opened, wooden box Ex.P5 was found inside it. When the wooden box was opened, 2 packets, one containing 13650 and the other 26950 intoxicating tablets were recovered 50 tablets from each packet were separated as sample. The packets and the samples were separately sealed and were taken into possession vide seizure memo Ex. PD. The sealed samples were sent to the Government Analyst, Punjab, who, vide his report Ex. PA. found that each tablet contained 26.51 mg. of quinal Barbitone Sodium. He also found that the test for barbiturates was positive. After necessary sanction form the District Magistrate, Bhatinda for prosecution of the petitioner, he was chargesheeted.

The learned Trial Court convicted the petitioner under section 13 of the East Punjab Drugs Control Act, 1949 and sentence him to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 750/ In default of payment of fine, he was ordered to suffer further rigorous imprisonment for 3 months. Feeling aggrieved his conviction and sentence, the petitioner filed appeal which was heard by the learned Additional Sessions Judge, Bhatinda. He found no merit in the appeal and dismissed the same. Still not feeling satisfied, the petitioner has filed the present revision petition.

Though while exercising revisional jurisdiction, the High Court is not expected to treat the petition as an appeal, but, in the present case, I find that the prosecution story appears to be doubtful and independent evidence has been withheld. Therefore, in the interest of justice, I will discuss the same.

The prosecution story about the recovery is supported by PW 2 ASI Avtar Singh and PW 3 SI Swaran Singh. The only independent witness who had been joined in the raiding a party was Teja Singh, but he was given up as having been won over. Of course, I am well aware of the proposition that conviction of an accused can be based upon the statements of official witnesses alone, but, in the present case, as will be discussed below, it would be unsafe to do so.

The secret information was received by SI Swaran Singh while he was present at the level crossing. He joined in the raiding party only Teja Singh. It is doubtful that the said witness can be said to be an independent witness. PW2 ASI Avtar Singh has stated that when Teja Singh met SI Swaran Singh at the level crossing, both of them chatted for about half an hour. This shows that SI Swaran Singh was well acquainted with Teja Singh. In fact, as appears from the various recovery memos. Teja Singh is a resident of village Rayya which is 4/5 miles from Rampura Phool. SI Swaran Singh has admitted that earlier he had remained posted in the Police Station within whose jurisdiction Rayya village fell. Another thing to note is that after receiving secret information, the party passed through inhabited area of Rampura Phool, but no person of that place was joined.

The prosecution story is that the petitioner was coming from the office of Patiala Transport Co. (Regd) after taking delivery of the package. Ex P3 is stated to be the goods receipt which was taken into possession by the Police from the said Company. This shows that weight of the package was 20 kg. The petitioner is L17 licencee and therefore, he cannot be said to be man of no means. In such circumstances it looks doubtful that on 19th May, at about 10.30 a.m, when it must be quite hot the petitioner would be carrying such a heavy package on his head. The petitioner would have taken a rickshaw or some other conveyance to carry the goods from the office of the transport company. It is further to be noted that vide statement of PW2 ASI Avtar Singh, the place of recovery was vacant fields. If the petitioner did not hire a conveyance on the ground that the package contained incriminating articles, then it looks improbable that he would not have been able to recognise the Police party and would have continued proceeding towards it.

The goods receipt Ex. P3 is dated 18th May, 1978. Though the destination in this receipt is given as Rampura Phool, but, strangely enough, the place from which the consignment was sent is not incorporated therein. It further looks surprising that PW3 SI Swaran Singh did not interrogate the petitioner about the place from which the consignment was booked. Another thing to note is that vide goods receipt Ex. P3, the goods were consigned by one person named Kahan Chand and the consignee was mentioned as `self''. This receipt does not bear the signatures of the consignee. It is in the statements of PW2 Avtar Singh and PW3 Swaran Singh that after the seizure of the tablets from the petitioner, the police party had visited the office of the above said transport company and from there the goods receipt Ex. P3 is stated to have been taken into possession from one clerk named Ram Singh, vide memo Ex. PE. Ram Singh has not been examined in the witness box. The clerk who might have made the delivery of the consignment to the petitioner has also not been examined. PW3 SI Swaran Singh has stated that though the signatures of the petitioner do not appear on the goods receipt Ex. P3, but his signatures existed in the reigster of transport company. It is surprising enough that the said register was not taken into possession. ASI Avtar Singh has stated that no copy of the relevant entry of the register from the transport company was taken into possession. First PW3 SI Swaran Singh was also not certain if the copy of the relevant entry from the register was taken into possession. He, first, stated that perhaps a copy of the relevant entries from that register was taken into possession. However, at a latter stage, he was definite on the point that a copy of the relevant entries from the register was taken into possession and at that time, ASI Avtar Singh was also present. Strangely, that copy has not been produced on the file, nor is there any seizure memo about taking into possession of any such document.

PW3 ASI Avtar Singh is somewhat vague about his statement. PW2 ASI Avtar Singh has stated that when he was joined by SI Swaran Singh, at the bridge for patrol duty, he was not told the side towards which the Police party was to go. He has also stated that he did not remember how far the place of recovery was from the level crossing. He could not give that distance even approximately. He does not even remember that by which route the party had reached the place of recovery from the level crossing. Thus, it is doubtful if this witness was really with the alleged police party.

Form the above discussion, it is clear that the prosecution evidence cannot be safely relied upon. At this stage, I may also discuss the defence evidence briefly.

When examined under section 313 of the Code of Criminal procedure, the petitioner had taken the plea that some of his enemies had connived with the Police and involved him in this case. He has also stated that in has absence, the Police Party had raided his house and had illegally taken into custody his son Kishan Lal and his employee Ashok Kumar and that he (i.e. the petitioner) was, in fact, produced by Avtar Singh before the Police.

In his defence, he has examined the said Avtar Singh as DW 1. He has stated that the wife of the petitioner had told him that at about 8/9 a.m., the petitioner''s son and the latter''s employee had been taken away by the police. He has further stated that he contacted the Deputy Supdt. of Police who told him to produce the petitioner. According to him, he produced the petitioner at about 4/5 p.m. on that day.

The petitioner has also produced in evidence Ex. DD which is a copy of the petition filed under Article 226 of the Constitution of India for the issuance of a writ in the nature of habeas corpus by his wife on 21st May, 1978 in this Court against ASI of Police post Mandi Rampura Phool and Station House Officer, Phool for production of Kishan Kumar and Ashok Kumar in the Court Ex. DA is a copy of the order passed on that petition. A roving warrant officer was appointed. The copy of his report is Ex.DB. Ex. DC is the copy of the order passed by this Court after the report of the warrant Officer was received. This order shows that the detenu were found present in the Police Post Rampura Phool and they had stated before the Warrant Officer that they had been taken into custody on May 19, 1978. PW2 Avtar Singh and PW3 SI Swaran Singh have admitted that raid on the Police Station was effected by the Warrant Officer and the said detenus were found at the Police Station, though, according to them they had been arrested in proceedings under sections 107/151 of the Code of Criminal Procedure. Thus, it cannot be said that defence plea is imporbable.

For the foregoing reasons, it is held that on the basis of the prosecution evidence produced in the case, it is not safe to sustain the conviction of the petitioner. Accordingly, I accept the present revision petition and set aside the conviction and sentence of the petitioner and acquit him of the charge framed against him.

Revision accepted.