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1995 Supreme(P&H) 1367
PUNJAB & HARYANA HIGH COURT
V.S.Aggarwal, J.
Gaja Nand
Versus
State Of Haryana
Criminal Appeal No. 96 of 1994,
Decided On : NOVEMBER 24, 1995
In cases involving the recovery of contraband substances, the absence of independent public witnesses may raise doubts about the genuineness of the recovery and may lead to the benefit of doubt being given to the accused.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 18 - RECOVERY OF OPIUM - INDEPENDENT WITNESS - CONVICTION BASED ON OFFICIAL WITNESSES' TESTIMONY - CIRCUMSTANCES TO BE CONSIDERED - ABSENCE OF PUBLIC WITNESSES - DOUBT BENEFIT TO ACCUSED.
Fact of the Case:
The appellant was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possessing 1-1/2 kgs of opium. The recovery was made during a search conducted by the police in the presence of two official witnesses, but no independent public witness was joined.
Finding of the Court:
The court held that the absence of public witnesses in the raiding party raised doubts about the genuineness of the recovery. It noted that the recovery was made in broad daylight on a main road, and it was difficult to believe that no public witness was available during that time.
Issues: Whether the conviction based solely on the testimony of official witnesses was sustainable in the absence of independent public witnesses.
Ratio Decidendi: The court held that the conviction could not be sustained based solely on the testimony of official witnesses in the absence of independent public witnesses. It reasoned that the absence of public witnesses raised doubts about the genuineness of the recovery, especially considering the time and place of the recovery.
Final Decision: The court allowed the appeal, set aside the conviction and sentence, and ordered the release of the appellant.
V.S.Aggarwal, J.
1. This is an appeal filed by Gaja Nand (hereinafter described as the Appellant) directed against the judgment and order of sentence passed by learned Additional Sessions Judge, Sirsa dated 19.2.1994. By virtue of the impugned judgment, the learned trial Court held the appellant guilty of the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter described as the Act). The appellant was subsequently sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. One lac. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for two years.
2. The relevant facts giving rise to the present appeal are that on 25.10.1991, Sub Inspector Ran Singh was posted as Incharge, C.I.A. Ellenabad. The appellant was detained suspecting that he was in possession of some Narcotic Substance in the bag in the area of Talwara Khurd. Head Constables Jagdish Singh and Suraj Mal were present. The appellant was informed vide a written notice, Ex. PA that if he chooses, his person can be searched in presence of a Magistrate or a Senior Police Officer. The appellant expressed his full faith in Sub Inspector Ran Singh and permitted him to effect the search.
3. The bag of the appellant was searched. It was found to be containing a plastic tin. On checking the tin was found to contain 1-1/2 kgs. of opium wrapped in plastic paper. 10 grams was taken as a sample. The sample and rest of the opium were converted into 2 separate parcels and sealed with the sale of RS. The seal after use was handed over to Head Constable Jagdish Singh. Both the packets were taken into possession vide a recovery memo. Ruqa was sent through Constable Rajinder Singh, on the basis of which formal F.I.R. was recorded.
4. The appellant and the recovered articles were produced before the Officer Incharge of Police Station, Ellenabad, who verified the facts and directed the case property to be deposited in the Malkhana. Satbir Singh was the Malkhana Moharrir. He took the case property in the Malkhana. The same was sent to F.S.L. Madhuban on 6.11.1991 through Constable Jagdish Raj. On receipt of the report that contents were opium, report under Section 173 Code of Criminal Procedure was submitted.
5. The learned trial Court framed a charge against the appellant for offence punishable under Section 18 of the Act. The appellant pleaded not guilty and claimed trial. The prosecution had examined 6 witnesses in all. The appellant when examined under Section 313, Code of Criminal Procedure denied the recovery of opium from his person. His precise defence was that he had a Maruti Van. Sub Inspector Ran Singh demanded the same. When he refused to oblige, he was falsely implicated in this case. No defence witness was examined.
6. Learned trial Court on appraisal of the evidence and other material on record concluded that it is established beyond all reasonable doubt to the effect that recovery of opium was effected from the person of the appellant. The defence version to the contrary was rejected. With this basic findings, the impugned judgment and order of sentence were passed.
7. Pertaining to the alleged recovery of opium the prosecution examined two witnesses. Jagdish Singh, P.W. 1 made a statement that while he was with Sub-Inspector Ran Singh, the appellant was apprehended on suspicion. He was served with a notice that if he likes, he can be taken before a Gazetted Officer for search. The appellant declined the offer and permitted the search by Sub Inspector Ran Singh. A plastic bag was found containing a plastic tin which had 1-1/2 kgs. of opium. 10 gms. was taken as a sample. They were converted into two parcels and sealed. During his cross-examination the witness added that village Talwar Khurd is 3/4 kms. from the place of recovery. The weights and scale were brought by Constable Rajinder Singh. When enquired the witness answered that no
