Pritam Singh Pattar, J.
1. This is an appeal filed by the State of Punjab against the judgment dated July 7, 1971, of Shri Bakhshish Singh, Judicial Magistrate 1st Class, Sunam, District Sangrur, whereby he acquitted Rameshwar Dass respondent son of Kasturi Lal, aged 27 years, shop-keeper of Sangrur of the offence under Section 9 of the Opium Act.
2. Briefly stated, the facts of this case are that on September 4, 1970, at about 4-00 P.M. Bant Singh, Head Constable, Police Station Sunam along with Karpal Singh, Mistri Singh and Gurhinder Singh, Constables, Kuldip Singh, Excise Inspector and Shis Ram, Excise peon, was present at the bus stand of Kothe Chhajli and he was talking with Rohi Ram and Kartar Singh, P.Ws. In the meantime Rameshwar Dass respondent came from Sunam side on a Vespa Scooter number PUL-69 and on seeing the police party at first he kept the speed of the scooter very low and then tried to speed up the scooter and on suspicion he was arrested by the police party. Bant Singh, Head Constable, searched the scooter and recovered four small plastic bags tied separately in different cloth pieces from the tool box, and on opening the same, opium was found therein. The opium was weighed on the spot and it was found that three plastic bags contained 3 kilograms and 700 grams each, and the fourth plastic bag contained 2 kilograms and 300 grams opium. Thus the total weight of the opium recovered from the four plastic bags was 13 kilograms and 400 grams. 50 grams of opium was taken as sample from each plastic bag and each sample was put into a separate tin box. The remaining opium together with plastic bags and bloth pieces was put into a tin box and all the four samples together with the tin containing the remaining opium together with plastic bags and cloth pieces, were sealed with the seal of Kuldip Singh, Excise Inspector bearing the mark 'K. S.'. Bant Singh, Head Constable took all the four tin boxes containing the samples, the tin containing the opium together with plastic bags and cloth pieces, the scooter, the spare wheel, one plastic bag, one rain coat and one bunch of keys etc., into his possession vide memo Exhibit PA and it was attested by Kuldip Singh, Excise Inspector, Rohi Ram and Kartar Singh, witnesses. He arrested the accused. From the personal search of the accused, one driving licence belonging to the accused, one registration certificate, insurance certificate, currency notes worth Rs. 480.50 and one wrist watch were recovered vide memo Exhibit PB. He sent ruqa Exhibit PC to the Police Station through Mistri Singh, Constable, and on its basis, the first information report, Exhibit PC/1, was registered by Bela Singh, Sub-Inspector. He prepared the site plan Exhibit PD of the place of recovery and the notes thereon are in his hand. He recorded the statements of the witnesses. The case property was deposited on the same day with Ajaib Singh, Moharrir Head Constable, Police Station, Sunam. The sealed samples were sent to the Chemical Examiner, Punjab, Government, Patiala, for analysis through Mistri Singh, Constable, who in his report Exhibit PE gave the opinion that the contents of all the four samples received by him were opium. He further mentioned in his report Exhibit PE that the seal on each sample was intact and it agreed with the sample seal sent to him. After the completion of the investigation, the accused was challaned under Section 9 of the Opium Act for being in possession of 13 kilograms and 400 grams of opium without any licence.
3. In his statement made under Section 342, Code of Criminal Procedure, in the trial Court, Rameshwar Dass accused admitted that the scooter No. PUL-69, the driving licence in his name and the registration and insurance certificates in respect of the scooter and a sum of Rs. 480.50 and a wrist watch 'Titus' make were taken into possession from him by the police at the time of his arrest, but according to him, he was arrested in the Police Station. He stated that he came to Sunam on that day for taking liquor for his shop at Hariao and when he was standing near the shop of Bodu Ram and was talking to Churanji Lal and Labh Singh and Sham Lal he was taken to the Police Station and was falsely implicated in this case. He further stated that Kartar Singh and Rohi Ram are gun-licence holders and are under the influence of the police and the other witnesses are interested witnesses and they gave false evidence against him. Bant Singh, Head Constable, had fabricated this case against him because Sham Lal, his partner, appeared against Bant Singh, Head Constable, as a witness in a complaint filed by Labhu Ram against Bant Singh, Head Constable, and that Bant Singh, Head Constable, was pressing him that Sham Lal, his partner, should not give evidence against him, and on his refusal, he became inimical to him. He examined three witnesses in defence. The learned Magistrate held that Rohi Ram, P.W. 2, failed to identify the accused in Court, that Kartar Singh, P.W. 1, had appeared AS & witness in 8 or 10 cases and, therefore, their statements could not be relied upon and that the remaining two witnesses namely, Kuldip Singh, Excise Inspector, P.W. 3, and Bant Singh. Head Constable, P.W. 4, were official witnesses and were thus interested in the success of the case and their statements could not be relied upon. He concluded that there was no independent and reliable evidence to connect the accused with the crime and giving the benefit of doubt he acquitted Rameshwar Dass, respondent. The State of Punjab filed this appeal against his judgment on the ground that the decision of the learned Magistrate is wrong, the appeal may be accepted and the accused may be punished according to law. This appeal was admitted on November 18, 1971, by a Division Bench of this Court.
4. Before discussing the evidence (produced by the parties in this case, I would like to state the law laid down by the Supreme Court pertaining to appeals against acquittal. In Laxman Kalu Nikalje v. The State of Maharashtra : 1968CriLJ1647 , it was held:
The powers of the High Court In an appeal against the acquittal are not different from the powers of the same Court in hearing an appeal against a conviction. The High Court in dealing with such an appeal can go into all questions of fact and law and reach its own conclusions on evidence provided it pays due regard to the fact that the matter had been before the Court of Session and the Sessions Judge had the chance and opportunity of seeing the witnesses depose to the facts. Further, the High Court in reversing the judgment of the Sessions Judge must pay due regard to all the reasons given by the Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view of the matter. It may also be pointed out that an accused starts with a presumption of innocence when he is put up for trial and his acquittal in no sense weakens that presumption, and this presumption must also receive adequate consideration from the High Court.
In Mohandas Lalwani v. The State of Madhya Pradesh : 1973CriLJ1812 , it was held:
In an appeal against acquittal under Section 417, the High Court has full power to review at large the evidence on which the acquittal is based and to reach the conclusion that the order of acquittal should be reversed. But before reaching such conclusion the High Court should give proper weight and consideration to such matters as
(1) the views of the trial Judge as to the credibility of the witnesses;
(2) the presumption of innocence in favour of the accused-a presumption certainly not weakened by the fact that he has been acquitted at his trial;
(3) the right of the accused to the benefit of any doubt; and
(4) the slowness of an appellate Court in disturbing a finding of fact arrived by a Judge who had the advantage of seeing the witnesses.
To the same effect was the law laid down in Keshav Ganga Ram Navge v. The State of Maharashtra : 1971CriLJ798 and Khedu Mohton v. The State of Bihar : 1971CriLJ20 . It was further held in Khedu Mohton's case (supra) that unless the conclusions reached by the lower Court are palpably wrong or based on erroneous view of the law or that its decision is likely to result in grave injustice, the High Court should be reluctant to interfere with its conclusions. If two conclusions are possible from the established facts, the view favourable to the accused may be taken. Now, I proceed to discuss the evidence adduced by the prosecution in this case. The prosecution examined four witnesses to prove its case and they are, Kartar Singh, P.W. 1, Rohi Ram, P.W. 2, Kuldip Singh, Excise Inspector, P.W. 3, and Bant Singh, Head Constable, P.W. 4. All these witnesses supported the prosecution story in its entirety. They were cross-examined at length by the counsel for the accused, but nothing could be elicited from them to shake their testimony.
5. Kartar Singh, P.W. 1, is a resident of village Kothe Chhajli and on that day he. had gone to the bus stand of village Kothe Chhajli in order to board a bus for Sunam when the police party met him and Rohi Ram. The learned Magistrate remarked in his judgment that no reliance could be placed on the testimony of this witness because he admitted in his cross-examination that he appeared as a witness in 8 or 10 cases. Reliance in support of this view was placed on Hira Lal v. The State of Haryana : 1971CriLJ290 , wherein it was held that the evidence of the persons appearing as prosecution witnesses four or five times in police cases pertaining to a particular police station does not carry any value. It was not enquired from Kartar Singh, P.W. 1, whether the cases in which he appeared as a witness were criminal cases or civil cases and in how many and in what years he appeared as a witness in those cases. No question was asked from him whether those cases .pertained to Police Station, Sunam, or to any other Police Station or Tahsil or District. He did not state at all that he appeared as a witness in 8 or 10 oases pertaining to Police Station, Sunam. Therefore, none of the conditions laid down in Hira Lal's case (supra) is satisfied and the learned. Magistrate was wholly wrong in discarding evidence of this witness on this flimsy ground.
6. Rohi Ram, P.W. 2, is also a resident of village Chhajii and he was also present at the bus stand Kothe Chhajii along with Kartar Singh, P.W. 1, to catch a bus to go to Sunam when the police party met them. He fully supported the prosecution story in his examination-in-chief and cross-examination. His statement was recorded on January 28, 1971. After the close of his statement, a request was made on behalf of the accused to permit him further cross-examination of this witness and this request was accepted. In further cross-examination he simply stated that he can recognise Rameshwar Dass accused. However, thereafter, he pointed towards one Mohan Lal, present in Court, stating him to be the accused in the case, The learned Magistrate remarked that since this witness could not identify the accused, therefore, his entire evidence that opium was recovered from Rameshwar Dass accused is useless and cannot toe relied upon. Rohi Ram, P.W. 2, had seen the accused Rameshwar Dass only once on September 4, 1970, when he was apprehended by the police. There is no evidence that he knew the accused previously or he saw the accused after the date of occurrence and before January 28, 1971, when his statement was recorded. Therefore, his evidence cannot be discarded on the sole ground that he could not identify the accused on January 28, 1971 in Court. The occurrence took place during day time and, therefore, the question of identification of the accused by this witness did not arise. No reasons are given by the learned Magistrate to permit the counsel for the accused to further cross-examine this witness. It appears that after the close of the evidence of this witness some bargain was struck between the accused and the witness and then the request to the Court for further cross-examination was made and in order to help the accused in a clever and subtle way, the witness identified a wrong person. In his examination-in-chief and cross-examination he categorically stated that when the police party was present at bus stand Kothe Chhajii, Rameshwar Dass accused came there on a scooter from Sunam side' and he was apprehended and the opium was recovered from him. The reasons given by the learned Magistrate to discard his statement are wholly untenable. The statement of this witness is consistent and he fully supported the prosecution story.
7. The learned Magistrate further, held that both these witnesses, Kartar Singh, P.W. 1, and Rohi Ram, P.W. 2, were chance witnesses and consequently, their statements should not be believed. Kartar Singh, P.W. 1, is a resident of village Kothe Chhajii, and Rohi Ram P.W. 2 is a resident of village Chhajii and both of them were present at the bus stand Kothe Chhajii to catch a bus for Sunam, In the meantime the police party consisting of Bant Singh, Head Constable, Kuldip Singh, Excise Inspector and others reached there and Bant Singh, Head Constable, was talking to both these witnesses when the accused came there on a scooter from Sunam side and he was apprehended. Consequently, they cannot be said to be chance witnesses. In this respect, reference may be made to Jagabandhii Behera v. Kshetrabasi Samal : AIR1968Ori26 , wherein it was held:
There is no magic in the comment of witnesses as 'chance witnesses'. Though this is the usual argument, its implication is hardly understood. When an incident takes place in broad day light, different persons are bound to follow their own avocations of life and while doing so they are likely to come across incidents which in the ordinary course they never contemplated to see. Unless their evidence is otherwise assailable, it cannot be whittled down merely on the theory that they were chance witnesses.
The evidence of both these witnesses cannot be assailed on the mere ground that they could be chance witnesses. This reason given by the learned Magistrate is also repelled.
8. Mr. Kartar Singh Raipuri, learned Counsel for the respondent contended that both these witnesses, Kartar Singh, P.W. 1, and Rohi Ram, P.W. 2, are gun-licensees and thus were under the influence of police and were not independent witnesses and their statements should not toe believed. We are unable to accept this contention. Arms-licences are granted by the authorities to respectable persons and their evidence cannot be discarded merely because they hold arms-licences. This contention is, therefore, repelled as devoid of force.
9. The learned Magistrate held that the other two prosecution witnesses. Bant Singh, Head Constable, P.W. 4, and Kuldip Singh, Excise Inspector, P.W. 3, are public servants and are, therefore, naturally, interested in the success of the case and their evidence cannot be held to be sufficient to prove the prosecution story. This approach is wholly wrong and incorrect. It is well settled that prima facie the public servants must be assumed to act honestly and conscientiously. It would, therefore, be basically wrong, without other cogent ground, to consider them as untrustworthy witnesses in respect of their activities in performance of their official duties merely because of their official status unless the evidence is considered to be suspicious and that conviction of the accused cannot be sustained on the statements of official witnesses. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds, vide Hazara Singh v. The State 1963-65 Pun LR 223, Tilak Raj v. The State 1965-67 Pun LR 128, Pritam Singh v. The State 1964 Cur LJ 39, and Aher Raja Khima v. The State of Saurashtra : 1956CriLJ426 . The headquarter of Kuldip Singh, Excise Inspector, P.W. 3, is at Sunam and on that day, he along with his peon Shis Ram had gone on cycles on routine checking in the ilaqa and he met the police party and thereafter he along with the police party visited village Nangla and did some checking work. From there they all reached bus stand Kothe Chhajli at about 2.00 P. M. He had no grudge or ill-will against the respondent who is a resident of Sangrur town. The accused has not alleged any grievance against this witness. There is nothing on the file to shake his testimony and I see no reason to disbelieve his statement. He fully proves the prosecution story,
10. Bant Singh, Head Constable, P.W. 4, had gone on patrol duty on September 3, 1970, and had visited villages Ganduan, Maidebas, Mojowal and Chhajla. Kuldip Singh, Excise Inspector, P.W. 3, and his peon-Shis Ram, besides Mistri Singh, Constable, met him on 4-9-70, and thereafter all of them visited village Nangla where they reached at about 11.00 A. M. From that village all of them Cached bus stand Kothe Chhajli where the other two witnesses Kartar Singh, P.W. 1, and Rohi Ram, P.W. 2, met them and this witness Bant Singh, Head Constable, P.W. 4, was talking to them when the accused came from Sunam side on his scooter and was apprehended. His statement is also consistent and cogent and there is no ground to disbelieve his testimony. The defence version is that one Labhu Ram of village Longowal had filed a complaint against Sub-Inspector Ram Chand, S. H. O. Longowal and this Bant Singh, Head Constable, P.W. 4, and in that case one Sham Lal appeared as a witness against them and that Sham Lal is a partner of the respondent Rameshwar Dass who was being pressed by Bant Singh, Head Constable, P.W. 4, to prevail upon Sham Lal not to give evidence against him and on his refusal, the Head Constable, P.W. 4, became inimical to him. A suggestion to that effect was put to Bant Singh, Head Constable, P.W. 4, in cross-examination and he categorically denied it. He stated that it is correct that one Labhu Ram of village Longowal had filed a complaint against him and Ram Chand, S. H. O. Police Station, Longowal, but it was later on compromised. He did not remember whether Sham Lal is a partner of the accused and he appeared in that complaint against them as a witness for Labhu Ram, complainant. He denied that he pressed Rameshwar Dass, respondent, that Sham Lal should not give evidence as a witness against him. No evidence was produced by the accused to prove this alleged enmity with Bant Singh, Head Constable, P.W. 4. There is no evidence on the file as to when this complaint was filed by Labhu Ram and whether Sham Lal is a partner of the respondent Rameshwar Dass accused and he appeared as a witness in that complaint and that Bant Singh, Head Constable, P.W. 4, had asked Rameshwar Dass, respondent, to prevail upon Sham Lal not to appear against him. The alleged enmity is not proved at all. Mere vague suggestion about this enmity which was denied by Bant Singh, Head Constable, is no proof of the alleged enmity. Bant Singh, Head Constable, P.W. 4, could have grudge either against Labhu Ram or against Sham Lal and the question of his having grudge against Rameshwar Dass, respondent, did not arise. Moreover, Bant Singh, Head Constable, P.W. 4, categorically stated that compromise was effected in that case and there is no other evidence on the file to rebut his positive statement on this point. The alleged enmity is not proved and the learned Magistrate was wholly wrong in discarding the evidence of this witness on this ground.
11. In paragraph 9 of the judgment, the learned Magistrate held that the prosecution failed to connect the possession and ownership of the scooter with the accused. This finding is wholly perverse and wrong. All the four prosecution witnesses whose statements have been discussed above categorically stated that the accused came from Sunam side on a Scooter No. PUL-69, and on seeing the police party at adda Kothe Chhajli, at first he slowed down the speed, but later on, he tried to speed up the scooter and on suspicion, toe was stopped and the opium was recovered from the tool box of the scooter. In his statement under Section 342, Code of Criminal Procedure, Rameshwar Dass, respondent, admitted that the scooter No. PUL-69, the driving licence of the scooter in his name, registration and insurance certificates in respect of the scooter, a sum of Rs. 480.50, and a wrist watch, were taken from his possession. In view of this admission, there cannot be any doubt regarding the recovery of the scooter from the possession of the accused and this fact was ignored by the learned Magistrate for reasons best known to him. It appears that lie was bent upon acquitting the accused somehow or the other. No doubt, the owner of the scooter recorded in the papers recovered from the accused was one Krishan Lal of Ludhiana, but it is immaterial for the purpose of this case because the possession of the scooter and the opium by the accused is established beyond reasonable doubt from the evidence on the file.
12. Lastly, Mr. Kartar Singh Raipuri, learned Counsel for the respondent argued that no signatory chit of any person was placed in the sealed samples of the opium sent to the Chemical Examiner and, therefore, it cannot be said that the samples sent were of the opium recovered from the accused. This contention is devoid of force and is repelled. The four sealed samples of the opium recovered from the respondent were deposited by Bant Singh, Head Constable, P.W. 4, on September 4, 1970, in the malkhana of Police Station, Sunam, with Ajaib Singh, Moharrir Head Constable, with seals intact. On September 7, 1970, Ajaib Singh, Moharrir Head Constable handed over the four sealed parcels containing samples of the opium with seals intact to Mistri Singh, Constable for depositing the same with the Chemical Examiner, Punjab Government, Patiala. Mistri Singh, Constable, took the sealed samples from Ajaib Singh, Moharrir Head Constable, went to the office of the Excise and Taxation Officer at Sangrur and obtained a letter written in Panjabi from there and then took these four sealed samples to the office of the Chemical Examiner, pun-jab Government, Patiala, and obtained a receipt from there which he handed over to Ajaib Singh, Moharrir Head Constable.
13. So long as the sealed parcels of the opium recovered from the respondent remained in possession of Ajaib Singh, Moharrir Head Constable and Mistri Singh, Constable nobody tampered with them. These facts are proved from the affidavits, Exhibits PF and PG of Ajaib Singh, Moharrir Head Constable and Mistri Singh, Constable. The Chemical Examiner, Punjab Government, Patiala, in his report Exhibit PE, gave the opinion that the contents of all the four samples are opium. He further stated that the seal on each sample was intact and it agreed with the sample seal sent to him. It is thus clear that the samples of the opium recovered from the accused Rameshwar Dass reached the Chemical Examiner with seals intact.
14. To prove his defence version, the respondent examined two witnesses, namely, Yash Pal, D.W. 1, and Labh Singh D.W. 2. Both these witnesses were present at the shop of Bodu Ram. They stated that Rameshwar Dass accused also came there and when he was talking to Churanji Lal, Bant Singh, Head Constable, P.W. 4, came there and he searched the scooter of the accused, but nothing was recovered and then he took the accused to the Police Post, Mandi Sunam. Yash Pal, D.W. 1, is a shop-keeper of Sunam while Labh Singh, D.W. 2, is a resident of village Chatha Nanhera and he had gone to the shop of Yash Pal for purchasing Kerosene oil, Labh Singh, D.W. 2 did not state that Bant Singh, Head Constable, P.W. 4, had come there and taken the accused to the Police Post, Mandi Sunam. He simply stated that one Head Constable came there and he searched the motor-cycle and took the accused towards the Police Post, Mandi Sunam. He did not know what business was carried on by Rameshwar Dass, respondent. According to him, the accused was known to him for the last one or two years and he used to meet him on the shop of Bodu Ram. They did not know if 13 kilograms and 400 grams of opium had been recovered from the accused. No reliance can be placed on the statements of these witnesses. Such like witnesses can be produced by any person in any number. If the accused was arrested in the manner alleged by him, then he and these defence witnesses would have made applications to the superior officers against the Head Constable who arrested him. Further, such a huge quantity of opium worth about Rs. 13,000 could not be planted by the police on the accused. The defence version is wrong and incorrect and the same is rejected.
15. For the reasons given above, it is held that the decision of the learned Magistrate is absolutely wrong and perverse .and cannot be sustained. The offence was brought home to the accused beyond any reasonable doubt. As a result, we accept the appeal, set aside the decision of the trial Magistrate acquitting the accused and convict Rameshwar Dass, respondent, under Section 8 of the Opium Act for being found in possession of 13 kilograms and 400 grams of opium. The occurrence took place on September 4, 1970. He was acquitted by the Judicial Magistrate 1st Class, Sunam, by judgment dated July 7, 1971. This appeal was admitted on November 18, 1971. Therefore, taking all these facts and circumstances into consideration, Rameshwar Dass, respondent, is sentenced to undergo one year and six months' rigorous imprisonment and to pay a fine, of Rs. 2,000. In default of payment of fine, he shall further undergo rigorous imprisonment for six months. The accused is on hail arid he is ordered to surrender to his bail bonds or to undergo the sentence of imprisonment awarded to him.
A.D. Koshal, J.
16. I agree.