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2004 (2) Crimes 162
Punjab & Haryana High Court
Virender Singh, J.
State of Punjab—Appellant
versus
Tota Singh—Respondent
Criminal Appeal No. 366-DBA of 1991.
Decided on 18-11-2003
Counsel for the parties:
For the Appellant :Ms. B.K. Mann, Senior Deputy Advocate General, Punjab.
For the Respondent:R.S. Mamli, Advocate.
Important Point
Corroboration to testimony of police official is a rule of caution & not a rule of law.
Headnote:(i) Opium Act—Section 9—Recovery of 13.950 kgs. of opium possession respondent accused — Conviction by trial Court set aside in appeal by Sessions Court only on ground that prosecution failed to examine the Investigating Officer and it caused prejudice — State appeal — Record showed that trial court made all efforts to secure presence of I.O. but being a dismissed employee of police department appeared to help respondent for some oblique reason — Evidence of other two police official recovery witnesses was reliable — Corroboration to statement of police official was a rule of caution & not a rule of law — Impugned judgment of acquittal was liable to be set aside & conviction by trial Court to be restored. (Paras 10 to 12)
(ii) Opium Act — Section 9 — Recovery of 13.950 kgs. of opium — Conviction — Sentence — Incident was on 17-3-1983 & accused thus had faced agony of 20 years trial — He had been in jail for 3 weeks — Sentence of one year imprisonment awarded by trial court reduced to period already undergone. (Para 13)
Result: Appeal allowed accordingly.
JUDGMENT
Virender Singh, J.— State of Punjab has preferred the present appeal against the acquittal of Tota Singh respondent, who was allegedly found in possession of 13.950 kgs. of opium.
2. The gravamen of police charge against respondent-Tota Singh is that he on 17.3.1983 was found in conscious possession of 13.950 kgs. of opium punishable under Section 9 of the Opium Act (hereinafter referred to as “the Act”). He was convicted by the learned Judicial Magistrate 1st Class, Barnala under Section 9(a) of the Act vide judgment dated 8.2.1988 and was sentenced to undergo RI for one year and to pay a fine of Rs. 500/-. Aggrieved by the judgment of conviction and sentence, he preferred the appeal and the same stands allowed vide impugned judgment dated 16.7.1990 of the learned Additional Sessions Judge. Hence, this appeal.
3. I have heard Ms. B.K. Mann, learned Senior Deputy Advocate General, Punjab and Mr. R.S. Mamli, learned counsel for the respondent. With their assistance I have also gone through the entire record minutely.
4. Learned State counsel has argued with vehemence that the only ground of acquittal of the respondent is non-examination of the Investigating Officer (Sub Inspector Hardeep Singh) and the view taken by the learned lower Appellate Court is that this has deprived the defence of its statutory right to cross-examine the material witness, resultantly causing prejudice to the accused. According to the learned State counsel this approach of the lower Appellate Court is unsustainable in the present set of circumstances because the prosecution in support of its case has examined other two material official witnesses of the recovery, namely, HC Malkiat Singh (PW1) and ASI Lal Chand (PW2) and they have supported the prosecution case in toto so far as alleged recovery of opium is concerned. The learned counsel then submits that all the material documents including the recovery memo Ex.PA and the rough site plan Ex.PC have also been duly proved in this case from the statement of Lal Chand ASI (PW2) who has stated that the above-said documents are in his writing and there is other-
wise no reason to disbelieve the evidence of the above-said two official witnesses which is unimpeachable. Even otherwise, there is no motive with the police officials to falsely involve the present respondent in a case of very heavy recovery of about 14 kgs. Consequently, the impugned judgment as recorded by the learned lower Appellate Court is liable to be set aside as the charge against the respondent is proved to the hilt, the State counsel so contends.
5. Developing the arguments further it is submitted by the learned State counsel that Inspector Hardeep Singh was in fact dismissed from the service and at the time of trial of the present case, was intentionally not appearing before the Court in spite of the fact that many summons were sent to him to procure his presence and ultimately the Court had closed the evidence of the prosecution.
6. On the other hand, Mr. Mamli while refuting the arguments advanced by the learned State counsel has drawn my attention to para 5 of the impugned judgment of the learned lower Appellate Court where the effect of non-examination of Sub Inspector Hardeep Singh (Investigating Officer) has been discussed in detail. Mr. Mamli submits that the finding of the lower Appellate Court is otherwise not liable to be disturbed as the alleged recovery from the respondent does not get any corroboration from independent witnesses and as such it should be seen with an eye of suspicion.
7. In the alternative Mr. Mamli states that though not conceded yet in the event of disturbing the finding of acquittal of the present respondent, a lenient approach regarding sentence be extended towards him keeping in view that he has already suffered the protracted trial of long 20 years and that the present case being under the Opium Act, he can even be released on probation under the Probation of Offenders Act. In s
