Major Singh and Another vs State of Punjab

K.C. Puri, J.—This is an appeal directed by accused-appellants against the judgment and order dated 22.2.2001 passed by Shri A.S. Kathuria, learned Judge, Special Court, Mansa vide which accused/appellants have been convicted u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short - the Act) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 1,00,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one year each.

Briefly stated the case of the prosecution in brief is that on 28.2.1996, a police party headed by ASI Beant Singh was on patrol duty in a Government tractor No. PB-03-3149 and were going from village Bhikhi towards village Samaou, Matti, Gurthali etc. From the bus stand Mandi, Nasib Singh son of Sucha Singh, Chowkidar resident of Gurtdhali was joined with the police party. The police party proceeded further and when they reached near the canal bridge within the area of village Gurthali, the accused were seen coming from the opposite side on their tractor Eicher bearing registration No. RJ-13-1R-0168. Major Singh accused was driving the tractor, while the other accused Teja Singh was sitting on the mudguard of the tractor carrying a bag on his legs. The tractor was got stopped on doubt and suspecting some incriminating material in their possession, they were asked whether they wanted to be searched before a Magistrate or before a Gazetted Officer. Both the accused stated that they wanted to be searched before a Gazetted Officer. As such DSP Joginder Singh Kahlon, Sub Division Mansa, was summoned on the spot, through a wireless message, who reached the spot within a short period and he disclosed his identity to the accused persons. Thereafter under his directions and in his presence, the search of the accused was conducted and from their possession, one bag of poppy husk was recovered. 100 grams poppy husk was taken as sample from it and remaining poppy husk was weighed which came out to 20 kgs. The sample and the bag of poppy husk were sealed by the IO and were taken in custody vide recovery memo. The jama talashi of the accused was also conducted and Rs. 100/- currency notes were recovered. Ruqa was sent to the police station on the basis of wich formal FIR was recorded. The accused were formally arrested and reasons for their arrest was disclosed to them. Site plan was drawn, special report was sent to the higher police officers and the case property along with the sample, tractor and the accused were entrusted to the SHO of the police station, Bhikhi on the same date in the right condition. On the next day, the sample and the case property was produced before the Illaqa Magistrate. The sample was sent to the Chemical Examiner for its test, who submitted its report stating therein that the contents of the sample are of Chura Poppy heads. After the completion of the investigation, challan was presented. The magistrate committed the case to the Court of Session.

The accused were charged u/s 15 of the Act, to which they pleaded not guilty and claimed trial.

The prosecution in support of its case, examined PW-1 Constable Hardev Singh, PW-2 SHO Baljit Singh, PW-3 HC Sukchain Singh and closed the prosecution evidence after tendering certain documents.

The accused were examined u/s 313 Code of Criminal Procedure and all the incriminating evidence was put to them, to which they denied and asserted that the case is false. In defence they did not led any evidence.

The learned trial Court, after hearing the learned Counsel for the parties, convicted and sentenced the accused/appellants vide judgment and order dated 22.2.2001, as aforesaid.

Feeling dissatisfied with the aforesaid judgment and order, the Appellants have preferred the present appeal.

I have heard learned Counsel for the parties and have gone through the records of the case.

It is settled law that harsher is the punishment and striker is the proof for the offence. The present case falls within the ambit of unamended provisions of Narcotic Drugs and Psychotropic Substances Act, which carries minimum punishment of ten years and fine of Rs. 1,00,000/-.

In this case only one recovery witness has been examined, who happens to be HC Sukhchain Singh. ASI Beant Singh, the investigating officer of the present case and DSP Joginder Singh, the other recovery witnesses have not been examined and they had died prior to their examination in the trial Court. Therefore, it is highly unsafe to record the conviction or a sentence of ten years on the basis of uncorroborated testimony of single witness. No doubt, the prosecution could not produce both ASI Beant Singh and DSP Joginder Singh on account of their death but the accused have been seriously prejudiced by non-examination of those two witnesses. So, the benefit of the same has to be given to the accused.

The other circumstance which militates against the case of the prosecution that charge framed against the accused is faulty. According to the charge 20 kg 10 grams of churra poppy husk was found on the Eicher tractor bearing registration No. RJ-13-1R-0168. The vehicle No. PB-03-3149 was a Government vehicle belonging to the police party and it is nobody''s case that the poppy husk was found from the Government vehicle. No doubt, charge can be amended at any stage but since there are other infirmities in the prosecution version, as such, I do not deem it fit to get the charge corrected at the hands of the trial Court.

The learned Counsel for the appellants has further submitted that seal after use was not handed over to independent witness and that procedure of law has not been adhered to. However, since the prosecution has not been able to prove the guilt of the accused and as such the benefit of the same has to be given to both the accused.

So, in view of the above discussion, the appeal stands accepted and the accused-appellants stand acquitted by giving them benefit of doubt.

A copy of this judgment be sent to the trial Court for strict compliance.