Crl.Appeal No.63-SB of 2003 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.63-SB of 2003 Date of Decision: 15 - 4 - 2009 Wazir Khan .....Appellant v. State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Harpreet S. Rakhra, Advocate for the appellant. Mr.Mehardeep Singh, AAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Appellant Wazir Khan was convicted by the Judge, Special Court, Bathinda under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as, `the Act'). He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-. In default of payment of fine, he was to undergo rigorous imprisonment for one month. The appellant was found in possession of 1 Kg. of opium. ASI Sawaran Singh had sent ruqa Ex.PJ to Police Station Raman, on the basis of which FIR Ex.PJ/1 was recorded. It was stated in the ruqa that ASI Sawaran Singh along with his companion officials in a private jeep was Crl.Appeal No.63-SB of 2003 [2] going from Village Ramsara to Narang for holding nakabandi and checking of suspected persons. At bus stand Ramsara, Gamdoor Singh son of Phuman Singh was jointed to accompany the police party. When the police party started going from bridge canal of Ramsara to Narang, one person was spotted coming from village Narang. On the basis of suspicion, he was apprehended. He disclosed his name as Wazir Khan son of Yakub Khan. The police party told the person apprehended that it is expected that he has concealed something in the dub of his trouser, therefore, an offer was given to him to get himself searched before a Gazetted Officer or a Magistrate. On the offer made, the accused reposed faith in the Gazetted Officer. Shri Balwinder Singh Rumana, DSP (H) was called at the spot. Search was conducted in the presence of Shri Balwinder Singh Rumana, DSP. Necessary procedure regarding search, seizure and drawing of sample was carried and the accused was arrested. Report under Section 173 Cr.P.C. was submitted. The accused- appellant was charged for offence under Section 18 of the Act on the ground that on 3.6.1998, he was found in possession of 1 Kg. of opium without any valid permit or licence. Prosecution examined PW1 SI Beer Atma Ram. He stated that on 3.6.1998 he was posted as SHO, Police Station Raman. On that day, ASI Sawaran Singh produced before him the accused and the case property. Balwinder Singh Ramana DSP, appeared as PW-2 and he deposed regarding effecting of search and recovery from the accused-appellant. PW- 3 ASI Sawaran Singh, Investigating Officer appeared and deposed regarding the investigation, search, seizure and drawing of the sample. During the course of cross-examination, he admitted that seal after use was handed over to HC Kulwant Singh. PW-4 Constable Rachhpal Singh Crl.Appeal No.63-SB of 2003 [3] tendered in evidence his affidavit. Thereafter all incriminating evidence was put to the accused. He pleaded false implication and stated that Gurdev Singh, Sarpanch of his village was inimical towards him and is close friend of SI Beer Atma Ram and, therefore, he has been falsely implicated at the instance of Gurdev Singh Sarpanch. In defence, the appellant had examined Vir Singh son of Bakhtaur Singh. He had stated that Wazir Khan was close to Baldev Singh who was Sarpanch of the village and the appellant Wazir Khan was taken by the police from his house in the village. Mr.H.S.Rakhra appearing for the appellant has stated that in the present case, no independent witness was examined, though an independent witness was associated by the police party. It has been urged that withholding of Gurdev Singh is fatal to prosecution. It has been further stated that seal was not handed over to independent witness Gamdoor Singh but it was handed over to HC Kulwant Singh. In the present case, the trial Court had reposed trust in the testimonies of official witnesses, namely, PW-2 Balwinder Singh Rumana, DSP and PW-3 ASI Sawaran Singh. I have read their cross-examination also. The defence had failed to shake their credibility. Merely because independent witness was not examined and seal had not been handed over to independent witness, it cannot be said that the appellant had been falsely implicated, especially when testimony of PW-2 Balwinder Singh Rumana and PW-3 ASI Sawaran Singh inspire confidence. At this stage, Mr.Rakhra has stated that in the present case, recovery was effected in the year 1998. Appellant had already suffered a protracted trial for 11 years. He has committed no offence after registration of the case or earlier thereto. The appellant is sole bread earner of the family Crl.Appeal No.63-SB of 2003 [4] and has large family to support. It has been further stated that sentence awarded upon the appellant be adequately reduced. Taking into consideration protracted trial and the fact that the appellant is the sole bread earner of the family, sentence awarded upon the appellant is reduced from 3 years rigorous imprisonment to 1½ years rigorous imprisonment. However, the sentence of fine is maintained. Subject to above modification in the quantum of sentence, the appeal is disposed off. ( KANWALJIT SINGH AHL UWALIA ) April 15, 2009. JUDGE RC