State of Punjab vs Harbhajan Singh

Harmohinder Kaur Sandhu, J.

State of Punjab has filed the present appeal against the judgment dated June 2, 1983 recorded by Shri J. S. Mander. The learned Judicial Magistrate Ist Class, Nakodar, whereby he acquitted Harbhajan Singh son of Gopal Singh of village Balanda of a charge under Section 9(a) of the Opium Act.

The prosecution case in brief is that on July 10, 1980 Sub Inspector Kala Singh received secret information, on the basis of which he raided the premises of the accusedrespondent and took him in custody. On interrogation the respondent disclosed that he had kept buried 35 bags of poppy husk in the ploughed field cultivated by him and he could produce the same. His disclosure statement Exhibit PB was recorded in pursuance of which 35 bags of poppy husk were recovered from the specified place. Sample was separated from each bag and the samples and the bags of poppy husk were seated and were taken into possession vide memo Exhibit PC. Case was registered against the respondent and samples were sent to the Chemical Examiner who found that the contents of the samples were poppy husk. Challan was then presented against the respondent and after trial he was acquitted of the charge.

The contention of the respondent during trial was that he had not suffered any disclosure statement nor he got recovered bag of poppy husk. He was falsely implicated in the case. In fact, he did not own any land in village Balanda nor he cultivated the land of others.

Before raiding the house of the respondent, the Investigating Officer had joined one Daya Singh from village Balanda in the raiding party and it was the contention of the prosecution that the respondent suffered disclosure statement in his presence and he also witnessed the recovery of poppy husk but Daya Singh did not support the case of the prosecution and he appeared in defence. He deposed that the respondent was never interrogated in his presence by Sub Inspector Kala Singh nor 35 bags of poppy husk were recovered at the instance of the respondent. No seal was ever entrusted to him. He explained that his signatures were obtained by the police on the blank paper and he had not attested any statement or recovery Memo.

The learned counsel for the appellant contended that recovery in this case was effected as per disclosure statement made by the respondent which was admissible in evidence and the disclosure statement was wrongly discarded by the learned trial Court on the ground that at the time the disclosure statement was alleged to have been made, there were no accusation against the respondent. Moreover, the Investigating officer had joined an independent witness before raiding the house of the respondent, so conduct of the Investigating Officer could not be questioned on that score. We, are however, unable to accept these contentions of the learned counsel, because under Section 27 of the Indian Evidence Act, only that much information given by a person, accused of any offence can be proved which relates distinctly to the fact thereby discovered. The statement of that person alone is admissible who is accused of an offence. When the statement of the respondent was recorded, no case had been registered against him nor there was any complaint accusing him of any offence. In this regard. the observations made by the Hon''ble Supreme Court in Balkishan Devidayal v. State of Maharashtra, 1981 Chandigarh Criminal Cases 1 are relevant which are as follows :

"To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person "accused of an offence" within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in Court. In the instant case no such formal accusation had been made against the appellant, when his statement (s) in question were recorded by the R. P. F. Officer."

Since the Investigation of this case has been done to the utter prejudice of the accused in as much as that his right under article 20(3) of the Constitution has been violated, so evidence adduced is not admissible.

Moreover, there are only the statements of two witnesses which were not corroborated by any independent witness. There was also nothing on record to suggest that the respondent owned any land or cultivated the land of others. Daya Singh has not supported the case of the prosecution. Considering all these circumstances, the learned trial Court rightly acquitted the respondent of the offence under Section 9(a) of the Opium Act.

We find no merit in this appeal and dismiss the same.