Criminal Appeal No. 1162-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1162-SB of 2002 Date of Decision: 11.01.2010 Ashok son of Sh. Hanuman, aged 25 years, r/o village Bhodia Bishnoian, Distt. Hisar, Haryana. ... Appellant Versus The State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Rahul Vats, Advocate, for the appellant. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgment of conviction, dated 18.07.02, and the order of sentence, dated 20.07.02, rendered by the Court of Additional Sessions Judge, Hisar, vide which, he convicted the accused, for the offence, punishable under Section 18 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 four years, and to pay a fine of Rs. 25,000/-, and, in default thereof, to further undergo Criminal Appeal No. 1162-SB of 2002 2 rigorous imprisonment, for a period of six months, for having been found in possession of 1 kg of opium, without having any permit or licence, falling within the ambit of non-commercial quantity. 2. The facts, in brief, are that, on 31.03.01, Kapoor Singh, Sub Inspector/Station House Officer, alongwith Naresh Kumar, Assistant Sub Inspector, Naresh Kumar, Head Constable, Chand Singh, Head Constable, Krishan Kumar, Constable, and Vijay Pal, Constable, was on patrol duty, in government jeep No. HR-20-D-0295, being driven by Dharam Pal, Constable. When Kapoor Singh, Sub Inspector/Station House Officer, was talking with Hanuman son of Harbhaj Bishnoi, resident of Bhodia Bishnoian, a secret information, was received, that one Ashok, was in possession of opium, and could be arrested, if a raid was conducted. Consequently, the Police party alongwith Hanuman, independent witness, raided the house of the accused. The accused, was seen sitting near an iron pipe of 4 inch diameter, which was lying on the back of the temporary room, situated in front of his residential house. The accused was overpowered and on enquiry he disclosed his name as Ashok son of Hanuman, resident of Bhodia Bishnoian. Thereafter, Kapoor Singh, Sub Inspector/Station House Officer, conducted search of the house of the accused, wherefrom, a plastic container of 1 kg capacity, wrapped in a polythene and kept inside the iron pipe was recovered, whereon, the words, 'Madhu Deshi Ghee', were written. Notice under Section 50 of the Act, was served upon the accused, by Kapoor Singh, Sub Inspector/Station House Officer, by virtue of which, he was given an option of being Criminal Appeal No. 1162-SB of 2002 3 searched, either before a Magistrate or a Gazetted Officer. The accused opted to get searched, before a Gazetted Officer. Thereafter, the Police party, including the independent witness, and the accused, went to the house of Mann Singh, Deputy Superintendent of Police, Headquarter, Hisar. He was apprised of the factual position. Accordingly, the Deputy Superintendent of Police, conducted the search of the container, recovered from the possession of the accused, wherefrom, opium was recovered. 100 gms of opium, was taken as a sample, whereas, the remaining, on weightment, was found to be 900 gms. The remaining opium, was put back, into the plastic container. The sample of the opium, as well as the remaining quantity thereof, were converted into parcels, duly sealed with the seal, bearing impression 'MS', by the Deputy Superintendent of Police. Both the parcels, were taken into possession, vide memo recovery. The sample seal was also prepared. The seal after use was kept by the Deputy Superintendent of Police. The site plan of the place of recovery was prepared. Thereafter, report under Section 57 of the Act, was sent to the higher authorities, by Kapoor Singh, Sub Inspector/Station House Officer. On reaching the Police Station, the case property, was entrusted to the Moharrir Head Constable, and, the accused was put behind the bars. The sample, was sent to the Forensic Science Laboratory, Madhuban, for analysis. The report of the Forensic Science Laboratory, was received, whereby, the sample was identified as that of opium. After the completion of investigation, the accused, was challaned. 3. On his appearance, in the Court of the Committing Criminal Appeal No. 1162-SB of 2002 4 Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. 4. After the case was received by commitment, in the Court of Sessions, charge under Section 18 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 Davender Singh, Constable (PW1), Randhir Singh (PW2), Hanuman (PW3), Naresh Kumar, Assistant Sub Inspector (PW4), Mann Singh, Deputy Superintendent of Police (PW5), Sunder Lal, Head Constable (PW6), and Kapoor Singh, Sub Inspector/Station House Officer (PW7), the Investigating Officer. 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 falsely implicated, in the instant case, on account of party factions, in the village, and on the basis of false complaint,by calling him, in the Police Station. It was further stated by him that he had no concern with the alleged recovery of opium. It was further stated by him that nothing, was recovered, from his possession. It was further stated by him that he had no direct or indirect concern with the place of recovery. He, however, did not lead any evidence, in defence. 7. After hearing the Counsel for the parties, and, on going Criminal Appeal No. 1162-SB of 2002 5 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 correct reading and due appreciation of the evidence of the prosecution witnesses, was right, in coming to the conclusion that the same was cogent, convincing, trustworthy and reliable, and sufficient for holding the accused, guilty for the commission of offence under Section 18 of the Act. The findings recorded by the trial Court, in this regard, do not suffer from any illegality or perversity warranting the interference of this Court. The judgement 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 31.03.2001, i.e. for the last more than 08 years. He further submitted that during all these years, the appellant, suffered a lot of physical pain and mental agony and has come to senses. 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 Criminal Appeal No. 1162-SB of 2002 6 08 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 1 ½ years of sentence. In my considered opinion, the ends of justice, shall be met, in case, the substantive sentence and sentence of fine are reduced suitably. 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 substantive sentence is modified, in the manner, that the appellant, shall undergo rigorous imprisonment for 1 ½ years, instead of 04 years, awarded by the trial Court. The sentence of fine, is also reduced from Rs. 25,000/- to Rs. 10,000/-, and, in default thereof, the appellant, shall undergo rigorous imprisonment, for three months, instead of rigorous imprisonment for six 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. 11.01.2010 (SHAM SUNDER) AMODH JUDGE