BIRJU Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE two petitioners herein are Birju and Karma, the former the driver and the latter the cleaner of truck No. PUM 4025. The former belongs to the State of Uttar Pradesh and the latter to the State of Haryana. While plying their truck in the State of Punjab, they were intercepted near Police Station Khumanon by Sub-Inspector Mohinder Singh PW2 on secret information. On questioning both the petitioners, one after the other made a disclosure statement that he and the other had kept 33 kilograms of opium in a pocket of concealment below the floor of the truck which could be taken out on removal of a wooden plank of the floor of the truck. In pursuance thereof, both of them removed the wooden plank and got recovered 33 kilograms of opium which was duly taken into possession and a sample therefrom beforehand was taken for chemical examination. The report of the Chemical Examiner showed that the substance recovered was opium and this led to their trial. The prosecutions examined only Sub Inspector Mohinder Singh PW-2 and none other. Both the Courts below believed the statement of Mohinder Singh PW2 and thus the conviction of the petitioners under Section 9 of the Opium Act and the sentence of rigorous imprisonment for three years and a fine of Rs. 3,000/- each, in default, six months' rigorous imprisonment each stood maintained.

(2.) IN revision, Mr. R.S. Cheema, learned Counsel for the petitioners, has contended that the respective disclosure statements attributed to the petitioners i.e. inculpatory of the one giving it, and inculpatory of the other not giving it at that time, (though the process was reserved when the turn of the second came) never satisfied the requirement of Section 27 of the Evidence Act. The argument basically is that when Birju made the statement that he and his co-accused had kept concealed opium and then Karma, petitioner, had made a statement that he and his co-accused had concealed opium which led to the discovery of the same opium, on both of them removing the wooden plank whereunder it was kept in the pocket of concealment, makes it difficult to assume as to which statement led to the recovery and whose statement would be admissible against whom. I feel that this argument need not be examined too closely. The fact remains that there was a pocket of concealment and petitioner Birju was driving the truck while Karma was cleaner thereon and they were the only occupants of the truck in which opium was being transported. It is significant that the act of possessing opium is quite distinct from the act of transporting opium. This is plain from the bare reading of Section 9 of the Opium Act. The statements attributed to the petitioners under Section 27 of the Evidence Act may be relevant in so far as possessing of opium is concerned but it loses all significance when it comes to the act of transporting opium. The fact that the truck in the occupation of the petitioners was intercepted by Sub Inspector Mohinder Singh PW2 cannot be doubted. Similarly, the further fact that the two petitioners by their conduct revealed that opium was being transported in the truck, also cannot be doubted. So both of them are guilty under Section 9 of the Opium Act and have rightly been convicted by the Courts below. Thus I would not interfere with the conviction and affirm the same.

(3.) WITH this modification in the sentence, the revision petition is dismissed. Petition dismissed.