M.M.PUNCHHI,J - (1.) THE case against the petitioner as alleged by the prosecution was that on 12-6-1976, while in police custody, he made a disclosure statement to Inspector Sukhdev Singh P.W. in the presence of Jagdev Singh H.C. and Sher Singh and Bhag Singh, non-official witnesses, that he had kept buried opium wrapped in a glazed paper in an earthen vessel in a room of his house and that he could lead to the recovery. As a sequel to the said disclosure statement, he took a police party to his room where from an earthen vessel he produced 5 Kgs 425 Grams of opium. The recovery was witnessed by one Puran Singh. A sample extracted from the substance said to be opium was sent for analysis to the Chemical Examiner who found the same to be opium, which led the petitioner to be put to trial.
(2.) AT the trial, the prosecution examined Inspector Sukhdev Singh and HC Jagdev Singh as two witnesses of the prosecution. Sher Singh and Bhag Singh non-official witnesses, were not examined by the prosecution, for whatever be the reason. The accused petitioner when examined under section 313, Code of Criminal Procedure, denied the disclosure statement. The prosecution had even not examined Puran Singh, non-official witness of the recovery. The accused-petitioner in his statement under section 313, Code of Criminal Procedure, even denied the recovery. In order to support his defence, he examined Puran Singh as DW-1, who categorically stated that no such recovery had taken place in his presence and that the recovery memo had been got signed from him by the police when it had already brrn written. The trial Magistrate as also the lower appellate Court, relying on the evidence of the two police officials, convicted the petitioner under section 9 of the Opium Act and sentenced him to two years rigorous imprisonment and a fine of Rs. 1000/- in default of payment of fine to further undergo rigorous imprisonment for three months. This has led the petitioner to this Court in revision.
(3.) THE only point urged by the learned counsel for the petitioner is that keeping apart the alleged disclosure statement, it would only become relevant if the recovery is proved beyond reasonable doubt. He urges that when the non-official witness Puran Singh does not support it and has rather appeared as a defence witness, withstanding cross-examination bravely, it would not be safe to maintain the conviction of the petitioner. The argument as raised appears to me sound. Having gone through the statement of Puran Singh DW-1, it appears to me that it would not be safe to rely on the statements of the two police officials alone, especially when at one juncture they had expected to rely on the word of Puran Singh DW-1. The very fact that he did not support the prosecution and rather a appeared as a defence witness, goes to prove that the recovery is shaky and one that doubt creeps in, the disclosure statement automatically becomes redundant. In view of such doubt having crept in, it is not safe to maintain the conviction of the petitioner as well as the sentence.;