1 S.B.Criminal Revision Petition No.220/94 (Malkiyat Singh v. The State of Rajashan) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R. MALKIYAT SINGH. V. THE STATE OF RAJASTHAN. S. B. CRIMINAL REVISION PETITION.220/94. DATE OF ORDER 30/10/2009 PRESENT HON'BLE MR. JUSTICE C. M. TOTLA Mr. M.K.Garg, for Petitioner. Mrs. Chandra Lekha, PP, for the State. BY THE COURT: Petitioner challenges his conviction for the offence of Section 4 read with Section 9, Opium Act recorded by learned Magistrate vide judgment dated 6.8.92 and upheld by the learned Additional Sessions Judge on 13.6.94 deciding appeal No.87/92. Petitioner is sentenced to six months' rigorous imprisonment and fine Rs.200/- in default one month's simple imprisonment. Very briefly, relevant facts are that on 25.2.83, head constable PW 2 along with two constables PW 1 and PW 3 while patrolling in village at about 7 P.M. found a person coming with a bag in his hands who asked about contents - answered having vegetables and as the bag was seen to be searched, the person ran away leaving the bag – in bag below carrot and vegetables found a polythene containing about 1 kg of opium. The person was identified by a constable as Malkiyat Singh s/o. Narain Singh who could not be chased. The same were taken in 2 S.B.Criminal Revision Petition No.220/94 (Malkiyat Singh v. The State of Rajashan) possession – a sample of 50 gm separated and prepared memo Ex.P1 by head constable, FIR registered and petitioner arrested on 26.2.83. Sample on chemical analysis found to be of opium having 2.18% morphine. Of the four prosecution witnesses, PW 2 is head constable, PW 1 constable accompanying him and Stapal PW 3 also a constable accompanying who identified petitioner. Ashok Kumar PW 4 delivered sample at laboratory. Appellant's explanation is that he is falsely implicated as policemen wanted to make him a mukhbir (informer) for which he declined. In defence, is examined Kuldeep Singh PW 1. The concurrent are the findings of learned Magistrate and also learned Sessions Judge. Both the courts below have discussed evidence and arrived at the conclusion. Learned counsel for the petitioner arguing only for quantum of sentence, submitted that the petitioner is 68-70 years – already undergone about 25 days or a month – faced trial for about 9 years before Magisterial court – then about two years in Sessions Court and now about 18 years have elapsed. Submitted that petitioner has already undergone imprisonment for about a month so punishment of already undergone imprisonment shall meet ends of justice. In support of contention, reliance placed on 1994 Cr.L.R. (Raj.)82, Narayan @ Uda v. State of Rajasthan. Learned Public Prosecutor submitted that if for reasons sentence of imprisonment is reduced, appropriate fine may be. Considered arguments. Incident is of the year, 1983 – petitioner faced trial before Magisterial court for about ten years – now about 27 years have elapsed since the incident and looking at age described in memos – petitioner now 68 and nearing 70. Pendency of criminal trial of such a long period of ten years caused physical inconvenience, again and 3 S.B.Criminal Revision Petition No.220/94 (Malkiyat Singh v. The State of Rajashan) also expenses. Perusal of the record shows that the petitioner remained in custody for about little less than a month. Nothing on record disclosing involvement in any other criminal act. Therefore, taking into consideration all the above mentioned circumstances, in the opinion of the Court, it is proper that the sentence of imprisonment awarded be reduced to the already undergone and fine Rs.200/- enhanced to Rs.1,000/- in default to undergo 15 days simple imprisonment. Accordingly, partly allowing the revision, conviction of the petitioner is upheld and reducing the sentence, he is sentenced for the period of imprisonment already undergone with fine Rs.1,000/-, in default to undergo fifteen days' simple imprisonment. Fine to be paid by 15.12.09 before trial Court else to appear and surrender before trial Court on above mentioned date. (C. M. TOTLA), J. scd