S.S. Sidhu, J. - (1.) FAQIR Chand was convicted under section 9 of the Opium Act and sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 100/ -, or in default of payment fine to further unergo two months rigorous imprisonment by the order dated 4th September, 1973 of the Judicial Magistrate 1st Class, Ludhiana (Shri Shamsher Singh). An appeal filed by him against his aforesaid conviction and sentence was dismissed by the judgment dated 3rd November, 1973 of the Court of II Additional Sessions Judge, Ludhiana (Shri H.L. Randev). Faqir Chand, therefore has come up in revision to this Court.
(2.) THE facts of the case, in brief, are that on 25th January, 1971, H.C. Tarsem Singh P.W. 1 of Police Station Saddar Ludhiana, accompanied by constables, including Constable Chanda Singh P.W. 2, was present in the by pass Chowk on the road leading to village Bahadurpur in connection with patrol and excise checking. At about 8.45 a.m., Faqir Chand came there from the side of new vegetable market. On suspicion, he was stopped. On his personal search by H.C. Tarsem P.W., 500 grams of opium wrapped in a glazed paper was received from the Jhola which Faqir Chand accused was then carrying with him. Some opium out of the recovered opium was taken as a sample by the Head Constable Thereafter, the sample opium and the remaining opium were duly sealed with the seal bearing impression 'TS'. He also prepared the recovery memo. Exhibit P.A. in respect of this recovery. After that H.C. Tarsem Singh drew up the ruqa and sent the same to the Police State Saddar, Ludhiana where on the basis of which the formal First Information Report, Exhibit P.B./1, was registered against the accused . The sealed packet containing the sample opium was sent to the Chemical Examiner, who vide his report Exhibit P.D., opined that the substance contained in that sample was opium. After completion of the investigation, the accused was sent up for trial. The prosecution in support of its case, produced H.C. Tarsem Singh P.W. 1 and Constable Chanda Singh P.W. 2, besides tendering of the affidavits Exhibits P.E. to P.H. in evidence. The accused in his statement recorded under section 342, Code of Criminal Procedure after the close of the prosecution evidence, denied the prosecution allegations and pleaded that he was taken from his house to the Police Station by Shiv Kumar and Om Parkash constables on the pretext that he was wanted by the Station House Officer. After his arrival at the Police Station, he was falsely implicated in this case because the police had already recovered huge quantity of opium a day prior to his being brought to the Police Station and they wanted to foist the recovery of opium on those persons who were not in their good books. He further pleaded that as the police had some suspicion against him, the alleged recovery of opium was foisted on him. He however, declined to produce any evidence in defense. The trial of the accused ultimately resulted in his conviction with sentence, as indicated above.
(3.) I have heard the learned counsel for the parties and have fully appreciated the same in the light of the evidence brought on the file on behalf of the prosecution. At the very outset, it has been vehemently argued by the learned counsel for the petitioner that some independent persons were easily available at the place where the alleged recovery of opium was made from the petitioners and since none of them was made to witness that recovery, the conviction and sentence of the petitioner, recorded simply on the basis of the evidence of two official witnesses, namely, H.C. Tarsem Singh and Constable Chanda Singh P.Ws., who were naturally interested in the success of the case, are not sustainable at all. I find a good deal of force in the above contention of the learned counsel. Constable Chanda Singh has admitted in his cross -examination that there were two wooden cabins in which tea shops were being run at the place of recovery. Since it was about 8.45 A.M. some persons must be present at the fail two shops at that time, or at least the proprietors of those shops must be there. No person from those shops was joined in the police party before H.C. Tarsem Singh had conducted personal search of Faqir Chand. Accordingly, the conduct of H.C. Tarsem Singh in not joining with him independent witnesses, although available, renders the prosecution case highly doubtful against the petitioner. This view finds support from Ram Narain v. The State, (1974)1 Cri.L.R. 434, in which it has been held as under: - - It has been admitted both by 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 these shops was joined in the raiding party. As independent evidence was available which has been withheld, it would cost doubt even on the testimony, of the official witnesses. Inview of the above -quoted authority, it would not be safe to sustain the conviction of the petitioner as the basis of the testimony of official witnesses as the same loses its evidentiary value on account of the fact that although independent witnesses were available yet their services were not availed of by H. C. Tarsem Singh. The case wodld have been quite different if no independent witnesses was available at all to the police when they had arrested Faqir Chand accused on suspicion, but the conduct of the police official in not joining with them of independent witnesses who were available at the time of alleged recovery renders the prosecution story highly doubtful and on that account the petitioner is entitled to acquittal.;