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PETITIONER: KAUR SAIN

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT23/11/1973

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BEG, M. HAMEEDULLAH

CITATION:  1974 AIR  329            1974 SCR  (2) 393  1974 SCC  (3) 649  CITATOR INFO :  R          1977 SC 472  (8)

ACT: Opium Act ,s. 9 read with s. 54 Cr. P.C. -Appellant made  a statement from lock-up that he possessed opium in his house. He  was not arrested earlier for any such charge-Whether  it was a made up story by the prosecution in the  circumstances of the case.

HEADNOTE: The  Judicial Magistrate convicted the appellant under s.  9 of  the Opium Act for being in possession of over 1  Kg.  of opium without a licence and sentenced him for 8 months  R.I. and to pay a fine of Rs. 500/-.  The order of conviction and sentence  was confirmed in appeal by the Sessions Judge  and in revision by the High Court. According  to  the prosecution, the appellant  was  arrested under s. 54 Cr.P.C. and while he was in the police  lock-up, he  was alleged to have made a statement that he had kept  a tin of opium in his house.  Accordingly, he was taken to his house where the accused is alleged to have handed over a tin of  opium  to the police.  Before they  were  arrested,  the appellant  and  another  made  an  application  ,before  the Sarpanch  of  the village Panchayat stating that  they  were apprehensive  that  they  would be involved  in  some  false charge or the other on account of their enmity with  certain persons. Three courts had, however, held concurrently that the charge levelled  against  the accused stands  clearly  established. All  the  courts  below had rejected  the  defence  evidence summarily. Allowing the appeal, HELD  :  (i) It is common ground that on June 9,  1968,  the appellant was in the lock-up.  Suddenly, the appellant  made a disclosure that he had concealed a large quantity of opium in his house.  The appellant was not arrested on the  charge or  on  suspicion that he was in  possession  of  contraband opium.   After  the  statement made  by  the  appellant  was recorded  in police station, no case was registered  against him before his house was searched.  Secondly, without taking any help from any respectable person from the locality,  the Constable, got  hold of two persons, to accompany the police

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party  who  were  involved  in  criminal  charges   earlier. Further an uncle of one of the witnesses was a, rival candi- date  against  the  appellant in  the  Municipal  elections. Their  evidence  also’ was contradictory.   The  High  Court however, unhesitatingly, believed their evidence.  The  High Court  brushed  aside  the defence  witness  as  a  procured witnesses.There was no reference at all to the contradiction in  the evidence of the two panchas in connection  with  the authenticity of the search. [395B-G] (ii) The respondent relied heavily on         Ex. P.A.,  the statement alleged to have been made by the Appellant at  the police  station,which bore his signature.  In  view  of  the infirmities in the evidence of the prosecution, no  reliance can  be  placed on other circumstances  that  the  statement bears the Appellant’s signature         besides    in    his examination  under  s. 342, Cr.P.C., the appellant  was  not asked by the Magistrate to offer any explanation in regardto the statement. [396G-397A] In view of the exceptional circumstances of thecase,  the appeal was allowed. 1397C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION.Criminal Appeal No. 68 of 1970. Appeal  by special leave from the Judgment and  order  dated the 12th February, 1970 of the Punjab and Haryana High Court at Chandigarh in Criminal Revision No. 66 of 1969. 394 Nuruddin Ahmad and B. P. Singh, for the appellant. Harbans Singh and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD, J. The learned Judicial Magistrate, 1st  Class, Sunam  convicted the appellant under section 9 of the  Opium Act for being in possession of over 1 kg. of opium without a licence  and sentenced him to suffer  rigorous  imprisonment for  8 months and to pay a fine of Rs. 500/-.  The order  of conviction  and  sentence  was confirmed in  appeal  by  the learned  Sessions  Judge, Sangrur, and in  revision  by  the High,   Court of Punjab & Haryana.  This appeal  by  special leave is directed against the judgment of the High Court. According to the prosecution, the appellant was arrested  on June  9,  1968  under section 54 of  the  Code  of  Criminal Procedure.   While  he. was in the police.  lock-up,  he  is alleged  to  have made a statement that he had  kept  a  tin containing  opium in his house.  Gurdev Singh, the Station House Officer of the Lehra Police station, asked a constable to secure two Panchas and thereafter the police. party  went to  the  appellant’s house.  It is said that  the  appellant produced  a  tin of opium weighing 1 kg. and 300  gins.  and handed it over to Gurdev Singh. The  appellant  examined seven witnesses in support  of  his defence  that it. was on June 8, 1968 that he was put  under arrest in a place called Nagla where he runs a liquor  shop. Before  leaving  Nagla,  the  appellant  and  his  companion Jagdish  Rai,  who was also put under arrest,  presented  an application  before  the Sarpanch of the  village  panchayat stating that they-were apprehensive that they would be invo- lved  on some false charge or the other on account of  their enmity  with  certain persons.  The appellant  produced  the application  as  also  a  receipt  issued  by  the   village panchayat,  acknowledging  the  payment   fee  paid  by  the appellant for filing the application.  Appellant denied that he either made a statement that he had kept the opium in his

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house or that he produced the opium. We   are   acutely  aware  that  three  courts   have   held concurrently that the charge levelled against the  appellant stands  clearly  established  on the  evidence  led  by  the prosecution,.   It  is  not the practice of  this  Court  to undertake a fresh appraisal of the evidence in such matters. We are however constrained to observe that the story of  the prosecution  is so inherently impossible of belief  that  we are  unable to persuade ourselves to stay our hands and  let the  conviction  and sentence stand.  If two  views  of  the evidence  were  reasonably  possible,  we  would  not   have substituted  our  conclusion  for that of  the  High  Court. Unfortunately, however, none of the three judgments which we have  considered’ carefully even discloses an  awareness  of the  fiction-like pattern of the prosecution story and  none contains  even a bare reference to the mutually  destructive statements  made  by prosecution witnesses  on  the  crucial points   in   the  case.   Besides,  acting  on   a   priori considerations, everyone of the three courts, including  the High  Court,  has rejected the  defence  evidence  summarily without 95 pausing to consider it in the light of the probabilities  of the    case.  Defence witnesses are often untrustworthy  but it  is wrong for that reason to assume that they always  lie and  that the prosecution witnesses and always  trustworthy. The  prime  infirmity from which the judgment  of  the  High Court suffers consists in this double assumption. Whether  the appellant was arrested under section 54 of  the Code  of Criminal Procedure on the 8th or 9th is  immaterial for  it is common ground that on June 9, 1968 he was in  the lock-up.  Suddenly, the appellant seems to have been  seized by a strange urge to make a disclosure to Gurdev Singh  that he  had  concealed a large quantity of opium in  his  house. The appellant was not arrested on the charge or on suspicion that  he was in possession of contraband opium.   After  the statement  alleged  to have been made by the  appellant  was recorded  at  the police station, no.  case  was  registered against him before his house was searched. It  is  in evidence that various municipal  councillors  and other respectable persons live in the vicinity of the  Lehra police   station.   Rather  than  take  the  help  of,   any respectable person from the locality, it is strange that the constable deputed by Gurdev Singh should have hit upon  none more respectable than Kehar Singh and Krishan Chand.   Kehar Singh was charged by the police in a case under section  429 of the Penal Code. and he was cited as a prosecution witness at least in one case- against a person called Gajjan  Singh. Krishan  Chand  had figured as an accused in  a  prosecution under  section 382 of the Penal Code initiated by one  Sham Lal.   He  was  also  concerned  with  the  commencement  of security proceedings against a person called Hans Raj.   In the  municipal  elections of Lehra,  Krishna  Chand’s  uncle Mohan Lal was a rival candidate against the appellant and it is  not without significance that the appellant had won  the election.   Krishan  Chand lives half a mile away  from  the police  station  and  the  coincidence  strikes  us  as  too propitious   to  be  true  that  the  constable,   perchance discovered Krishan Chand sitting in the shop of a Halwai. Kehar Singh has stated in his evidence that the whole of the police  party  entered  the room from  which  the  appellant discovered  the  opium tin.  Krishan  Chand  supported  that evidence  in the first flush of enthusiasm but  he  conceded later  "We did not enter the. room from where  the  recovery was  effected.   Immediately  after entering  the  room  the

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accused  recovered  the opium in a tin and handed  over  the same  ’thanedar’  Gurdev,  Singh.  We sat  on  the  chabutra outside the house of the accused........... SHO Was  sitting on a cot while myself and Kehar Singh P.W. I were standing." It  is  obvious from these admissions the$ Kehar  Singh  and Krishan Chand were not in any sense witnesses Jo the seizure of  the  opium.  The Station House Officer would  appear  to have  put up the pretence of a search in which an opium  tin sprung from a magic hat. It was easy to go through the formality of a search  because even  the half-hearted admission of Gurdev Singh shows  that he had seen the two panchas before the case and that he  was only "not fully 39 6 known to them".  He should have stated how "unfully" he knew v  them  and  in  what context.   His  evidence  leaves  the impression  that if he were to disclose how closely he  knew the panchas and in what connection he had come to know them, he  would have himself laid the foundation for  disbelieving them. The High Court found an uncommon reason for believing  Kehar Singh  by  saying that the fact that he  was  charged  under section  429 of the Penal Code showed that the police  were not  inclined favourably towards him.  The  question  before the High Court was whether a person in the position of Kehar Singh  could  be taken at his word.  The fact  that  he  was alleged  to be concerned in an offence should have at  least put  the High Court on its guard so that his evidence  could be  approached with care and caution.  Instead of  analysing his  evidence  the  High Court  was  content  to  accept  it without  criticism  by observing : "He is a  person  who  is living near the Police Station and it is quite probable that he was associated by the police party in investigation." The fact  that  Krishan  Chand’s uncle had  lost  the  municipal election  against the appellant was, again, some reason  for the High Court to consider his evidence carefully.  The High Court  however  choose to compress  its  entire  evidentiary appreciation  in  a  sentence which runs thus  :  "AR  these witnesses  were cross-examined at length by the counsel  for the accused but no substantial discrepancy could be  brought out from the evidence of these witnesses." We feel concerned that  the  judgment  of the High Court  should  contain  no- reference at all to the contradiction in the evidence of the two panchas on an aspect vitally affecting the  authenticity of the search. The  evidence led by the defence has been brushed  aside  by the High Court with an observation : "I have no doubt in  my mind that it is not difficult to procure such evidence by an influential  man  like,  the accused  person.   The  accused person is running a liquor vend in the village and it is not difficult   for  him  to  get  application  of   the   kind’ fabricated."  We have spent some time in trying to  perceive what  influence the appellant wields but we were  unable  to see any traces thereof.  It is always possible to  fabricate documents and one does not have to be a liquor vendor to  be able  to  do it.  A more careful’ scrutiny  of  the  defence evidence  would  perhaps have induced in the  High  Court  a greater receptivity to the criticism to which the  evidence. of the prosecution is justly open. Learned  counsel  for  the State  relied.  heavily  on  the. circumstances that Ex.  P.A., the statement alleged to, have been made by the appellant at the police station, bears  the appellant’s  signature.   It’ is urged  that  the  statement contains  an  unqualified  admission  on  the  part  of  the appellant   that   he   had  concealed  a   tin   of   opium

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in  his  house  and that by itself would  be  sufficient  to sustain  the conviction.  In view of the infirmities in  the evidence  of Kehar Singh, Krishan Chand and Gurdev Singh  in whose presence the statement Ex.  P.A. is said to have  been recorded, no reliance can be placed on the circumstance that the  statement bears the appellant’s signature.  Besides  in his   examination  under  section  342,  Code  of   Criminal Procedure, the appellant was not- 39 7 asked  by  the learned Magistrate to offer  any  explanation whatsoever  in  regard to the statement.   Counsel  for  the State  says  that  such  a grievance  is  not  open  to  the appellant  ;is  he did not complain either in  the  Sessions Court or in the High Court that any prejudice was caused  to him on account of the Magistrate not seeking his explanation in  regard to the statement.  It is not as if the  appellant is  making  a  point before us that the  conviction  is  bad because of any defect in his examination under section  342. If  the  State  relies  in  this  Court  on  any  particular circumstance as being sufficient to sustain the  conviction, it would be open to the accused to plead in answer that the’ particular   circumstance  was  not  put  to  him   in   his examination under’ section 342. In view of these exceptional circumstances, we see no option save  to  allow  the  appeal and  set  aside  the  order  of conviction and sentence.  The bail bond is cancelled. S.C. Appeal allowed. 398