Kaur Sain Vs. The State of Punjab
 INSC 213 (23 November 1973)
BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 329 1974 SCR (2) 393 1974
SCC (3) 649
R 1977 SC 472 (8)
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.
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
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 party who were involved in criminal charges earlier.
Further an uncle of one of the witnesses was
a, rival candidate 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.
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
Harbans Singh and R. N. Sachthey, for the
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 involved 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 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 caseagainst a person called
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
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 noreference 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
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 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 not39 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.