Om Parkash vs State of Haryana

S.D. Bajaj, J.

Police party on patrol duty at Kuchpura Agond road on 19th March, 1983, apprehended accused Om Parkash carrying 1250 grams of opium. Learned trial court on 31st October, 1984 convicted him of the commission of the offence under section 9 of the Opium Act and sentenced him to undergo rigorous imprisonment for a period of 16 months. On appeal the learned Sessions judge, Karnal, vide his appellate judgment dated 8th February, 1985 maintained the conviction but reduced the sentence to 1 year in place of 16 months, awarded by the learned trial Court. Criminal Revision No. 532 of 1985 has been filed in this court for assailing the judgment of the court below.

It has been urged by the learned counsel for the petitioner that the police ought to have joined independent witnesses of the locality before searching the person of Om Parkash accused for recovery of incriminating opium from him and that the needful having not been done; in line with the observations made in Rattan Singh v. State of Punjab, 1984(1) Recent Criminal Reports 305 : 1984(1) Chandigarh Law Reporter 521 , the alleged recovery of incriminating article from the possession of the accused is rendered doubtful. The accused, it has been asserted, is so be given the benefit of doubt and acquitted.

The argument is completely bereft of any merit in it and the authority cited is also not of universal application. In the peculiar circumstances of the case, the patrol party was moving about on the road. The recovery of incriminating article from the possession of the accused on his personal search had, therefore, to be attested by official witnesses forming part of the raiding party. The Investigating Agency could not possibly call any independent witness from the locality before conducting the search. Both the official witnesses in Om Parkash, PW 4, and Pawan Kumar, PW 5, having duly supported the prosecution version in this regard so their testimony as held in Ahir Raja Khima v. State of Saurashtra, AIR 1956 SC 217, Joginder Singh v. State of Punjab, 1981 Chandigarh Cr. Cases 236, Harbhajan Singh and another v. State of Punjab, 1981 Chandigarh Cr. Cases 261 and State of Punjab v. Bhagwan Dass Jain, 1981 FAC 291, has not to be discarded merely because they happen to be official witnesses.

Secondly it was contended that link evidence in the case being not complete, the accused was, as held in Resham Singh v. State of Punjab, 1981 Chandigarh Law Reporter 314, entitled to acquittal. Elaborating the argument, the learned counsel for the petitioner contended that Exhibit PQ states that case property was brought to the Chemical Examiner by Constable Devi Ram No. 999, who has not been produced; nor his affidavit filed to this effect. Both the learned trial court as also the court of appeal, reached the conclusion that it was constable Jai Bhagwan, deponent of affidavit Exhibit PA, who had carried the case property to the Chemical Examiner and that in Exhibit PQ, name of Constable Devi Ram was wrongly mentioned. I do not think that the concurrent finding of fact, expressed by the two courts below, in this regard, can be assailed before this court in the present revision petition.

The controversy about omission on the part of learned Judicial Magistrate to mention the name of Constable Jai Bhagwan in the attestation endorsement of his affidavit Exhibit PA is set at rest because his name is duly mentioned in the other affidavit to the same effect which was duly attested by an Executive magistrate and forms a part of the record of the learned trial court. Moreover, Jai Bhagwan appeared as PW 2 but was not cross examined either to controvert or to explain away the suggestion.

In result, the revision petition fails and is dismissed.