Criminal Appeal No. 492-SB of 2002 v. State of Punjab

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

10. The Counsel for the appellant, at the very outset, submitted that, the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction and sentence stood vitiated. He further submitted that the offer, which was given, was also not legal and valid. The submission of the Counsel for the Criminal Appeal No. 492-SB of 2002 4 appellant, in this regard, does not appear to be correct. In this case, recovery, was not effected from the person of the accused, but from a Jhola (bag), he was carrying. Under these circumstances, the provisions of Section 50 of the Act, were not applicable, to the instant case. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be, in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. The Counsel for the appellant, however, placed reliance on Ajay Malik and others Vs. State of U.T., Chandigarh, 2009(3), RCR (Criminal), 649, decided by a single Bench of this Court, in support of his contention. The principle of law, laid down, in Ajay Malik and others' case (supra), runs contrary to the principle of law, laid down, in State of Punjab Vs. Baldev Singh's case (supra), decided by a Constitution Bench of the Apex Court. Under these circumstances, the principle of law, laid down, by this Court, on the same point, which runs contrary to the principle of law, laid down, by the Apex Court, shall not hold the field. The submission of the Counsel for the appellant, thus, being without substance stands rejected.

11. It was next submitted by the Counsel for the appellant that the independent witness, though joined, was not examined. He further submitted that, on account of this reason, the case of the prosecution, Criminal Appeal No. 492-SB of 2002 5 became highly doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is not necessary that, the Additional Public Prosecutor, for the State, must examine each and every witness joined, by the Investigating Officer, at the time of effecting recovery. The Additional Public Prosecutor, for the State, is the master of the case. It is, for him, to decide, as to which witness, he wants to examine, and which witness, he wants to give up. In the absence of examination of Baj Singh, independent witness, it is to be seen, as to whether, the other evidence, produced by the prosecution, is reliable, trustworthy, and inspires confidence, in the mind of the Court, or not. The perusal of the evidence of Malhar Singh, Sub Inspector, PW2, the Investigating Officer, and, D.S. Dhindsa, Deputy Superintendent of Police (D), PW3, a witness to the recovery, clearly goes to show, that the same, is reliable. Both these witnesses, were thoroughly cross-examined, by the accused, but nothing of the consequence, could be got elicited from their mouth which may go to discredit their evidence. They stood the test of touchstone of all probabilities, during the course of cross-examination. The mere fact that, both of them, were Police officials, at the relevant time, did not mean, that their evidence, was to be disbelieved only, on account of this reason. Since the evidence of both these witnesses, was found, to be reliable and trustworthy, by the trial Court, it was right, in recording conviction and awarding sentence, on the basis thereof. Non- examination of Baj Singh, independent witness, therefore, did not at all Criminal Appeal No. 492-SB of 2002 6 cause dent, in the case of the prosecution, in any manner. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected.

12. It was next submitted by the Counsel for the appellant, that the bag, wherefrom, the alleged recovery of opium, was effected, was not taken into possession, and, as such, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is, no doubt, true that, the bag, was not taken into possession. However, that did not mean, that no recovery of opium, was effected, from the accused. In fact, the case property, in this case, was the contraband, which constitutes the offence, under Section 18 of the Act. The bag, could not be said to be the incriminating evidence, against the accused. If the Investigating Officer, failed to take into possession the bag, containing the opium, the case of the prosecution, did not become doubtful. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.

13. It was next submitted by the Counsel for the appellant, that the defence version, which was set up, by the accused, and the defence evidence produced, on the record, were not properly appreciated, by the trial Court, as a result whereof, a great prejudice, was caused, to the accused. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In para No. 14 of its judgement, the trial Court, discussed the defence version and the defence evidence, Criminal Appeal No. 492-SB of 2002 7 produced by the accused. After appreciating the same, in its proper perspective, it came to the conclusion, that the same, did not dislodge the case of the prosecution. The defence evidence, was, thus, rightly disbelieved, by the trial Court.

14. The Counsel for the appellant, however, submitted that the appellant, has been facing the agony of protracted criminal proceedings, since 23.07.2000, when he was arrested, in this case. He further submitted that his sentence be suitably reduced. The submission of the Counsel for the appellant, in this regard, appears to be correct. The first information report, was registered, on 23.07.2000. Already a period of more 9 ½ years, has lapsed, from the date of recovery. The ends of justice, shall be met, if the substantive sentence, is reduced to rigorous imprisonment, for a period of 03 years, from rigorous imprisonment, for a period of 05 years, recorded by the trial Court. The submission of the Counsel for the appellant, in this regard, being correct, is accepted.

16. No other point, was urged, by the Counsel for the parties. In view of the above discussion, it is held that the judgement of conviction and the order of sentence, with the aforesaid modification, rendered by the trial Court, are based on the correct reading and due appreciation of evidence, and, law on the point. The same, subject to the aforesaid modification, do not suffer from any illegality or infirmity, warranting the interference of this Court, and, are liable to be upheld. Criminal Appeal No. 492-SB of 2002 8

17. For the reasons recorded above, the appeal, is partly accepted. The judgement of conviction is maintained. The order of substantive sentence is modified, in the manner, that the appellant shall undergo rigorous imprisonment for three years, instead of rigorous imprisonment for five years, awarded by the trial Court. The sentence of fine and, in default of payment of fine, shall remain unaltered.

18. The concerned Chief Judicial Magistrate, is directed to comply with the judgement, in accordance with law, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and send the compliance report, within a period of two months, from the date of receipt of a copy thereof.

20.01.2010 Amodh (SHAM SUNDER) JUDGE