Criminal Appeal No. 1905-SB of 2002 v. State of Punjab

Present: Mr. D.D. Sharma, Advocate, for the appellant. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgment of conviction and the order of sentence, dated 07.09.02, rendered by the Special Judge, Barnala, vide which, he convicted the accused, for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced him to undergo Rigorous Imprisonment, for a period of two years, and to pay a fine of Rs. 20,000/-, and, in default thereof, to Criminal Appeal No. 1905-SB of 2002 2 further undergo rigorous imprisonment, for a period of three months, for having been found in possession of 9 kgs of poppy husk, without any permit or licence, now falling within the ambit of non-commercial quantity.

2. The facts, in brief, are that, on 11.05.97, Rabi Singh, Assistant Sub Inspector, alongwith some other Police officials, was on the patrol duty, and they were going from village Tallewal to village Ramgarh. When the Police party, was just behind the bridge of canal near the katcha path, leading to village Tallewal, and talking with one Mukhtiar Singh, Chowkidar, the accused, was seen coming, from the side of village Tallewal, carrying a bag over his head. On seeing the Police party, the accused, tried to slip away, but was overpowered on suspicion. On search of the bag, in accordance with the provisions of law, 9 kgs of poppy husk, was recovered. Two samples of 250 gms each, were separated therefrom, and the remaining poppy husk, was kept, in the same bag. The samples and the bag, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide separate recovery memo. The accused, was arrested. After the completion of investigation, he was challaned.

3. On his appearance, in the Court, the accused, was supplied the copies of documents, relied upon by the prosecution.

4. Charge under Section 15 of the Act, was framed, against the accused, which was read-over and explained to him, to which he pleaded not guilty, and claimed judicial trial.

5. The prosecution, in support of its case, examined Rabi Criminal Appeal No. 1905-SB of 2002 3 Singh, Assistant Sub Inspector (PW1), the Investigating Officer, Jarnail Singh, Head Constable (PW2), and, Piara Singh, Inspector (PW3). Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence.

6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that, he was picked up by the Investigating Officer, from his house, in the presence of respectables and his neighbourers, and, later on, false recovery, was planted against him. He, however, did not lead any evidence, in defence, and closed the same.

7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.

8. Feeling aggrieved, the instant appeal, has been filed by the appellant.

9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

10. The Counsel for the appellant, did not challenge the conviction, recorded by the trial Court. Even otherwise, he could not successfully challenge the same. The trial Court, on due scrutiny of the evidence of Rabi Singh, Assistant Sub Inspector (PW1), the Investigating Officer, and, Jarnail Singh, Head Constable (PW2), recovery witness, was right in coming to the conclusion, that the same Criminal Appeal No. 1905-SB of 2002 4 was cogent, convincing, reliable and trustworthy and sufficient to hold the accused guilty. These witnesses were thoroughly cross-examined, but nothing of consequence, was got elicited from their mouth, which may go to discredit their evidence. The trial Court, was, thus, right in recording conviction. The judgment of conviction, rendered by the trial Court, thus, deserves to be upheld.

11. The Counsel for the appellant, however, submitted that the sentence awarded to the appellant, be reduced suitably, as he has been facing the protracted criminal proceedings since 11.05.97, i.e. for the last more than twelve years. He further submitted that during all these years, the appellant, suffered a lot of mental agony and physical pain. The submission of the Counsel for the appellant, in this regard, appears to be correct. The sword of damocle's, has been hanging over the head of the appellant, for the last more than twelve years. In my considered opinion, he must have learnt the lesson, by now. The Counsel for the appellant, however, submitted that the appellant, has already undergone about 08 months of sentence. In my considered opinion, the ends of justice, shall be met, in case, the substantive sentence is reduced to rigorous imprisonment for a period of 09 months, instead of 02 years, awarded by the trial Court. The submission of the Counsel for the appellant, to this extent, is accepted.

12. For the reasons recorded above, the appeal, is partly accepted. The judgement of conviction, rendered by the trial Court, is upheld. The order of substantive sentence and the remaining sentence is modified, in the manner, that the appellant, shall undergo rigorous Criminal Appeal No. 1905-SB of 2002 5 imprisonment for a period of 09 months, instead of 02 years, awarded by the trial Court, whereas, the sentence of fine, is reduced, from Rs. 20,000/- to Rs. 10,000/-, and, in default thereof, the appellant, shall undergo rigorous imprisonment, for a period of 01 month, instead of 03 months.

13. The Chief Judicial Magistrate, is directed to comply with the judgement, in accordance with the provisions of law, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, promptly, on receipt of a copy of the judgement.

19.01.2010 AMODH (SHAM SUNDER) JUDGE