Punjab-Haryana High Court
State Of Punjab vs Babu Lal on 24 March, 2009
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl.Appeal No.763-DBA of 1997 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No.763-DBA of 1997
Date of Decision: 24 - 3 - 2009
State of Punjab .....Appellant
v.
Babu Lal .....Respondent
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Mr.Mehardeep Singh, AAG, Punjab
for the appellant.
None for the respondent.
***
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Accused-respondent Babu Lal was named as accused in case FIR No.148 dated 3.9.1995 registered at Police Station Malerkotla under Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as, `the Act').
Case of the prosecution in nut shell is that on 3.9.1995, a police party headed by Inspector Nagor Singh along with other police officials and PW Dogar was proceeding towards Railway Station. When they reached near the Court Complex, accused-respondent Babu Lal was seen coming from the side of Railway Station carrying a brief case in his hand. It is stated that on seeing the police party, on pretext of urinating, he sat near the Crl.Appeal No.763-DBA of 1997 [2] wall of Court compound. On suspicion, he was apprehended. An offer was made to the accused that he can get himself searched from a Magistrate or a Gazetted Officer. The offer was not accepted as he reposed faith in the police officials. From the accused, recovery of 2 Kilograms and 250 grams of opium was made.
A report under Section 173 Cr.P.C. (Challan) was submitted. The accused-respondent Babu Lal was charged under Section 18 of the Act. Prosecution examined four witnesses, namely, HC Major Singh PW-1 and Constable Dilawar Khan PW-2 who tendered their affidavits Exs.PA and PX to prove link evidence. They were formal witnesses. Inspector Nagor Singh, the Investigating Officer appeared as PW-3 and deposed regarding search, seizure and compliance of mandatory provisions. HC Tara Singh who was attesting witness of the recovery memo appeared as PW-4 to corroborate the testimony of PW-3. Report of Chemical Examiner Ex.PY, was also tendered.
Accused-respondent Babu Lal had pleaded innocence in his statement recorded under Section 313 Cr.P.C. and stated that he was doing labour work and has been falsely implicated.
The trial Court held that Dogar independent witness was withheld. The police had not handed over the seal to the independent witness. The Court held that non examination of Dogar PW was fatal to the prosecution. The Court had not accepted the convenient explanation given by the prosecution that independent witness was won over and, therefore, was dropped from the list of witnesses. Court further held that seal was not handed over to independent witness Dogar PW. The Court also held that offer given to the accused was partial offer but that reasoning of the trial Crl.Appeal No.763-DBA of 1997 [3] Court on this count may not hold good. However, taking into consideration totality of circumstances that only official witnesses appeared and no independent witness was examined, seal was not handed over to the independent witness, the judgment recorded by the trial Court cannot be held to be perverse. The view taken by the trial Court is one view which is possible in the facts and circumstances of the case. Therefore, no interference is warranted after 14 years of the occurrence. This Court cannot lose sight of the fact also that at present recovery of opium of less than 2.5 Kg. is a non commercial quantity.
Hence, the present appeal is dismissed.
( KANWALJIT SINGH AHLUWALIA ) March 24, 2009. JUDGE RC