S.S. Dewan, J. - (1.) BALDEV Raj Petitioner was convicted under section 9(a) of the Opium Act and was sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 2,000/ - in default to under go rigorous imprisonment for six months by the Judicial Magistrate 1st class Phul on 6th May, 1977. On appeal, the learned Additional Sessions Judge Bhatinda, not only upheld the conviction of the petitioner but affirmed his sentence and hence the revision at his instance.
(2.) ACCORDING to the prosecution story, on 2.6.1974, Hardip Singh Sub Inspector alongwith Gurcharan Singh, A.S.I. and some of the police Constables were present at bus Stand Bhaika in connection with the investigation of a case where he received secret information and consequently joined Krishan Chand Singla, Excise Inspector in the raiding party. Bagga Singh, Sarpanch and Gurdial Singh were co -opted from village Kotha Guru and thereafter the police party went to the house of the petitioner. He was found present in his house. The Sub -Inspector interrogated the petitioner and he suffered a disclosure statement leading to the recovery of four small gunny bags containing opium lying underneath a heap of wheat. The weight of the opium was found to be 63kg. The sample and the residue opium were separately sealed with the seal of Hardip Singh S.I. After necessary, investigation and on receipt of the Chemical Examiner's report, the petitioner was sent up for his trial. The trial magistrate convicted and sentenced the petitioner as indicated above. There is no doubt that Krishna Chand Singla, Excise Inspector (P.W. 4) and Hardip Singh (P.W. 6) in their statements have fully supported the prosecution story which has been narrated above but the question is to be how far reliance can be placed on the testimony of these two witnesses. Gurdial Singh (P.W. 1) and Bagga Singh (P.W. 2) in their cross -examination have admitted having appeared as witnesses for the police in 13/14 cases. The conduct of the Sub -Inspector in not joining with him independent witnesses although available in the nearby locality renders the prosecution case highly doubtful against the petitioner. This view finds support from a decision in case Ram Narain v. The State, (19745) 1 Cri. L.T. 434 in which it was held as under: - It has been admitted both by the Sub Inspector Jaswant Singh and Excise Inspector Ram Avtar that at the place where the accused was apprehended, there were shops which were open at that time. No person from those shops was joined in the raiding party. As independent evidence was available which has been withheld it would cast doubt even on the testimony of the official witnesses.
(3.) IN view of the above -quoted authority, it well not be safe to sustain the conviction of the petitioner on the basis of the testimony of the investigation officer and the Excise Inspector as the same loses its evidentiary value on account of the fact that although independent witnesses were available in the locality yet their services were not availed of by the Sub -Inspector to witness the recovery.;