Judgment

CHANDRACHUD, J. :- The learned Judicial Magistrate, 1st Class, Sunam convicted the appellant under Section 9 of the Opium Act. for being in possession of over 1 Kg of opium without a licence and sentenced him to suffer rigorous imprisonment for 8 months and to pay a fine of Rs. 500/-. The order of conviction and sentence was confirmed in appeal by the learned Sessions Judge, Sangrur, and in revision by the High Court of Punjab & Haryana. This appeal by special leave is directed against the judgment of the High Court.

2. According to the prosecution, the appellant was arrested on June 9, 1968 under Section 54 of the Code of Criminal Procedure. While he was in the police lock-up, he is alleged to have made a statement that he had kept a tin containing opium in his house. Gurdev Singh, the Station House Officer of the Lehra police station, asked a constable to secure two Panchas and thereafter the police party went to the appellant s house. It is said that the appellant produced a tin of opium weighing 1 Kg. and 300 gms. and handed it over to Gurdev Singh.

3. The appellant examined seven witnesses in support of his defence that it was on June 8, 1968 that he was put under arrest in a place called Nagla where he runs a liquor shop. Before leaving Nagla, the appellant and his companion Jagdish Rai, who was also put under arrest, presented an application before the Sarpanch of the village panchayat stating that they were apprehensive that they would be involved on some false charge or the other on account of their enmity with certain persons. The appellant produced the application as also a receipt issued by the village panchayat, acknowledging the payment of the fee paid by the appellant for filing the application. Appellant denied that he either made a statement that he had kept the opium in his house or that he produced the opium.

4. We are acutely aware that three courts have held concurrently that the charge levelled against the appellant stands clearly established on the evidence led by the prosecution. It is not the practice of this court to undertake a fresh appraisal of the evidence in such matters. We are however constrained to observe that the story of the prosecution is so inherently impossible of belief that we are unable to persuade ourselves to stay our hands and let the conviction and sentence stand. If two views of the evidence were reasonably possible, we would not have substituted our conclusion for that of the High Court. Unfortunately, however, none of the three judgments which we have considered carefully even discloses an awareness of the fiction-like pattern of the prosecution story and none contains even a bare reference to the mutually destructive statements made by prosecution witnesses on the crucial points in the case. Besides, acting on a priori considerations, everyone of the three courts, including the High Court, has rejected the defence evidence summarily without pausing to consider it in the light of the probabilities of the case. Defence witnesses are often untrustworthy but it is wrong for that reason to assume that they always lie and that the prosecution witnesses are always trustworthy, The prime infirmity from which the judgment of the High Court suffers consists in this double assumption.

5. Whether the appellant was arrested under Section 54 of the Code of Criminal Procedure on the 8th or 9th is immaterial for it is common ground that on June 9, 1968 he was in the lock-up. Suddenly, the appellant seems to have been seized by a strange urge to make a disclosure to Gurdev Singh that he had concealed a large quantity of opium in his house. The appellant was not arrested on the charge or on suspicion that he was in possession of contraband opium. After the statement alleged to have been made by the appellant was recorded at the police station no case was registered against him before his house was searched.

6. It is in evidence that various municipal councillors and other respectable person