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DELHI HIGH COURT
M. L. JAIN, J.
JAI PARKASH
VERSUS
STATE
Criminal Revn. No. 34 of 1979,
Decided on : 20-4-1979
OPIUM ACT, 1878 - SECTION 9 - CONVICTION FOR POSSESSION OF OPIUM - EVIDENCE - SUFFICIENCY - RECOVERY OF OPIUM - WITNESSES - INDEPENDENT WITNESSES - REQUIREMENT - LABORATORY REPORT - DELAY IN DELIVERY OF SAMPLE - EFFECT - PROBATION - SECTION 360, CR.P.C. - CONSIDERATION OF - SPECIAL REASONS FOR DENIAL - NECESSITY.
Fact of the Case:
The petitioner was convicted under Section 9 of the Opium Act, 1878, for possession of 4 kgs of opium. He challenged the conviction on grounds that the recovery was false, there was no evidence of independent witnesses, and the sample was not properly delivered to the laboratory.
Finding of the Court:
The court found that the recovery was genuine and that the police officer's testimony was reliable. It also found that the requirement of independent witnesses was not necessary in this case, as the recovery was made in the presence of a D.S.P. The court further found that the delay in delivery of the sample to the laboratory did not affect the merits of the case, as the police officers had testified that the article seized was opium.
Issues: 1. Whether the recovery of opium was false. 2. Whether the requirement of independent witnesses was necessary. 3. Whether the delay in delivery of the sample to the laboratory affected the merits of the case. 4. Whether the petitioner should be granted probation.
Ratio Decidendi: 1. The court held that the recovery of opium was genuine, as the police officer's testimony was reliable and there was no evidence to suggest otherwise. 2. The court held that the requirement of independent witnesses was not necessary in this case, as the recovery was made in the presence of a D.S.P. 3. The court held that the delay in delivery of the sample to the laboratory did not affect the merits of the case, as the police officers had testified that the article seized was opium. 4. The court held that the petitioner should be granted probation, considering his circumstances and the fact that the trial had lingered on for a long time.
Final Decision: The court partly accepted the petition, upheld the conviction but set aside the sentence. The petitioner was directed to enter into a bond and remain under the supervision of the Probation Officer for a period of three years.
1. The petitioner was convicted under S. 9 of the Opium Act, 1878, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- in default whereof to rigorous imprisonment for 6 months. On appeal, his sentence was reduced to rigorous imprisonment for 9 months and a fine of Rs. 500/-, in default whereof to rigorous imprisonment for 2 months. Hence, this revision.
2. The prosecution case is that the petitioner was apprehended at about 1.10 A. M. on the night intervening 24th and 25th May 1975, at the G. T. Road Bus Stand in H Block Seelampur, by a police party which included a D. S. P. Asad Farookhi. The accused was found carrying a bag which contained opium about 4 kgs. in weight. The police took a sample of 200 gms. and sent it for analysis to the Central Forensic Science Laboratory. The said Laboratory found in the sample 5.13% contents of Morphine. It was in these circumstances that the aforesaid conviction took place.
3. The learned counsel for the petitioner challenged the conviction on grounds more than one. The first of his arguments is that the petitioner was falsely implicated as the opium was not recovered from him. That no recovery was effected from him is attempted to be proved in a twofold manner. Firstly, it was said that there were no independent witnesses of the recovery, and secondly, the opium was recovered from the search of a house not belonging to him. Tej Ram, D. W. I. deposed that to police broke open the locks of house No. 366 to which the accused and his brother Kishan objected. So what the police did was that they instituted a case under the Arms Act against his brother Kishan, vide F. I. R. No. 243/75 dated May 25, 1975, and instituted this case against Jai Parkash. The investigating officer, Virender Singh, P. W. 5, did say that he searched the house No. 363 of the accused, but he gave no explanation why he searched the house. This silence on his part should be construed to mean that the opium was not recovered from personal search. Now, the investigating Officer has denied to have searched any other house but that of the accused. The learned Addl. Sessions Judge observed, and correctly too, that there was nothing to arouse suspicion in the act of the investigating officer in further searching the house of the accused after the opium had already been recovered. Simply because nothing was found in the house of the accused, it cannot be said that the opium was planted on the accused. The F. I. R. proved by the accused only shows that accused Kishan Kumar was also carrying a prohibited arm in a public place. As regards the requirement of independent persons witnessing the search, one having some experience of the matter can easily believe the Police Officer if he says that none came forward to be a witness at that hour. I will rule out the allegation of false recovery for one more reason. The recovery was effected in the presence of a D. S. P. whose evidence cannot be disregarded for want of any good reason. It was next pointed out that there was no evidence that the opium was 4 kgs. in weight. Kuber Dutt, P. W. 1, said that he brought the scales from one Bhanwar Singh, a shopkeeper, but he could not give the number of the shop while Bhanwar Singh appeared as a defence witness and denied that he gave any scales to the police officer. Like the appellate court, I will not place much reliance upon the evidence of Bhanwar Singh and would like to believe the Police Officer, who has said that upon weighment the opium was found to be 4 kgs.
4. The second ground of attack on the judgment is that the prosecution has failed to prove that from the time of its recovery to the time of its delivery in the Laboratory, the sample was not tampered with. According to the report of the Laboratory, the sample was received by them on June 23, 1975, but head constable Iqbal Singh, P. W. 7, both in his affidavit and deposition, and constable Khazan Singh, P. W. 6, had deposed that the sam
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