Criminal Appeal No. 984-SB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 984-SB of 2000 Date of decision: 26 th February, 2008 Bhupinder Singh ... Appellant Versus State of Punjab ... Respondent ... Present: Mr. S. S. Rana, Advocate for the appellant. Mr. Shilesh Gupta, Deputy Advocate General, Punjab for respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This appeal has been directed against the judgment/order of sentence dated 8.9.2000 rendered by the Court of learned Additional Sessions Judge-cum-Special Judge, Hoshiarpur, whereby he convicted and sentenced accused-appellant to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months under Section 15 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). Shorn of all unnecessary details, the facts of the prosecution Criminal Appeal No. 984-SB of 2000 2 case are that on 15.2.1999, SI Angrej Singh among other police officials happened to be present at T-point, Chandigarh road in the area of Village Jian in connection with patrolling. The Sub Inspector received secret information that Bhupinder Singh son of Santokh Singh, resident of Mohalla Bashirpur, Jalandhar. along with Bobby resident of Model House, Jalandhar and Paramjit Singh of Village Shankar, Police Station Nakodar, were indulging in the sale of poppy husk. On receipt of this information, Naka was set up on the turning point of Village Lehli. At about 1.00 P.M., a Van bearing registration No. CHM-707 was spotted approaching from Mahilpur side. The same was signalled to stop. When the same came to a halt, two persons made good their escape through left side of the driver's seat of the Van. Accused Bhupinder Singh, who was driving this Van was apprehended. On interrogation, he disclosed his name as well as the names of other co-accused. He was offered to be searched before a Gazetted Officer or a Magistrate. He reposed confidence in the above mentioned Sub Inspector. His statement was jotted down. Meanwhile, Hoshiar Singh, SP (D) came at the spot. He also interrogated the accused and made the accused aware of his right to be searched in the presence of a Gazetted Officer or a Magistrate, but he reposed faith in him. On search, 9 bags of poppy husk each containing 35 Kg. were recovered from the Van. 250 grams of poppy husk was drawn from each bag to serve as sample. Thereafter the sample parcels and all the 9 bags each containing residue weighing 34 Kg. 750 grams were sealed with seal bearing impression HS. The specimen seal impression was also prepared at the spot. Besides this,C.F.S.L forms were filled at the place of recovery. All the bags, Exh.P-1 to P-9 along with the sample parcels and the above mentioned Van were seized vide Memo. Exh. Criminal Appeal No. 984-SB of 2000 3 PG. The seal after use was kept by the aforementioned S.P (D). The Sub Inspector prepared the arrest memo. Exh. PJ of the accused, rough site plan showing the place of recovery, recorded the statement of witnesses and sent Ruqa, Exh.PL, on the basis of which, formal FIR,Exh. PL/1 was recorded. On return to the police station, the Sub Inspector produced the case property including the sample parcels and the accused before SI Kulwant Singh, who after verifying gave direction to SI Angrej Singh to deposit the same with MHC Vijay Singh. On receipt of Chemical Examiner's report, Exh.PN and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused was charged under Section 15 of the Act, to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW-1 HC Vijay Singh, PW-2 Rajesh Sood, Clerk DTO Office, PW-3 Constable Gulshan Kumar, PW-4 Constable Jagdish Ram, PW-5 SI Angrej Singh (Investigator), PW-6 Hoshiar Singh SP (D), PW-7 SI Kulwant Singh and closed its evidence by giving up Inspector Harbhajan Singh and SI Surinder Kumar, being unnecessary. When examined under Section 313 of the Code of Criminal procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He put forth that SI Angrej Singh was using his van without making payment and he objected to it. Then, he quarrelled up with him and brought him from Jalandhar and falsely involved in this case. In his defence, he examined DW-1 Romesh Chander Marwaha, DW-2 Adarsh Kumar, DW-3 MHC Criminal Appeal No. 984-SB of 2000 4 Gobinder Kumar, DW-4 Virsa Singh and DW-5 Constable Suresh Kumar 816. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. I have heard Mr. S.S.Rana, Advocate, counsel for the appellant as well as Mr. Shilesh Gupta,Deputy Advocate General, Punjab, besides going through the record with due care and circumspection. Mr. S. S.Rana, Advocate, counsel appearing on behalf of the appellant, has not assailed the conviction on merits. He has strenuously urged that the sentence inflicted upon the appellant be made concurrent with the one already awarded against him vide judgment of even date passed by the learned Special Judge, Hoshiarpur, in Sessions Case No. 137/99 of 7.5.1999 decided on 8.9.2000 against which Criminal Appeal No. 985-SB of 2000 has been preferred. This prayer has been opposed by learned State Counsel. Albeit, the findings returned by the learned trial Court recording conviction of the appellant have not been assailed, nonetheless, being alive of the fact that I am sitting over the judgment as first Appellate Court, deem it apposite to scan the evidence with due care and caution. A meticulous perusal of the evidence tendered by SI Angrej Singh PW-5, Investigating Officer, as well as PW- Hoshiar Singh would reveal that their credibility could not be impeached in any manner and they stood like a rock in their cross-examination. SI Kulwant Singh has stated in categoric terms that on 15.2.1999, SI Angrej Singh produced the accused Criminal Appeal No. 984-SB of 2000 5 along with the police file, 9 sample parcels and 9 bags duly sealed with seal impression HS along with two C.F.S.L forms and he verified the facts of the case and directed SI Angrej Singh to deposit the case property with MHC Vijay Singh. On appraising the evidence of the above referred witnesses, it transpires that 9 bags containing poppy husk were recovered from the Van which was being driven by the accused at the time of recovery. Such a heavy recovery could not be foisted upon the appellant. As per Chemical Examiner's report, Exh.PN, the contents of all the 9 sample parcels were found to be of poppy husk. The appellant has come up with the plea in his statutory statement that SI Angrej Singh was using his Van on Begaar, to which he objected and then he quarrelled up with him and brought him from Jalandhar and falsely involved in this case. To substantiate this plea, he has examined Romesh Chander Marwaha, DW- 1, who has deposed that on 15.2.199 at 12.00 P.M. he was present at his shop; that one Maruti Van bearing registration No. 707 came from the side of Railway Colony, Jalandhar, which turned towards Sant Nagar, Jalandhar and the same was being driven by the accused present in Court today; that one Maruti Zen was following the above said Van and it overtook the same; that driver of Maruti Zen parked his vehicle in front of the Maruti Van and one person wearing police uniform having name plate Angrej Singh SI came out of the Zen and dragged out the accused from the Van and started beating him; that he along with some other persons went there and inquired from SI Angrej Singh as to why he was beating the accused and in reply he told that the accused had caused some accident and killed one person; that Railway Gateman Adarsh Kumar was also present there and that no poppy husk was Criminal Appeal No. 984-SB of 2000 6 recovered; that he was also examined in inquiry proceedings conducted by the police agency and his statement was also recorded by SI Rajinder Singh, Division No.3, Jalandhar. The appellant has also examined DW-2 Adarsh Kumar. In identical terms is his statement. The appellant in his statutory statement has taken a plea inconsistent with the above discussed evidence. One thing which emerges out of the above discussed defence evidence is that the appellant was apprehended by SI Angrej Singh on 15.2.1999 at about 12.00 P.M, that is the date of recovery. Obviously, the plea in the statutory statement is at variance with the defence evidence. When divergent defence versions are pitched against the prosecution story, it follows that the prosecution version outweighs the defence version. Sequelly, the prosecution version has to be believed in the given circumstances. Resultantly, the conviction is maintained. It is worth pointing out here that the appellant was also convicted and sentenced on the same date i.e. 8.9.2000 by the same Court of the then Additional Sessions-cum-Special Judge, Hoshiarpur in Sessions Case No. 137 of 7.5.1999, FIR No. 38 dated 18.2.1999, Police Station Sadar, Hoshiarpur, against which he has preferred Criminal Appeal No. 985-SB of 2000. As per the prosecution version in case, FIR No. 38 dated 18.2.1999, when the accused-appellant was in the lock-up in connection with a case, FIR No.35 dated 15.2.1999 under Section 15 of the Act, on interrogation he suffered a disclosure statement and in pursuance of the same, he got 6 bags of poppy husk recovered on 18.2.1999. In re: Pritam Singh v. State of Punjab, 2007 (4) Recent Criminal Reports (Criminal) 712, a Division Bench of this Court observed that “ from a bare reading of Section 427 of Code of Criminal Procedure, it Criminal Appeal No. 984-SB of 2000 7 transpires that sub-section (1) contemplates a sentence anterior in time to the one which a person is undergoing and also a subsequent sentence on a subsequent conviction. It does not say that sentence of imprisonment, which the accused is already undergoing, should have been awarded on a different date and not on the same day. The Court is competent to exercise its discretion in directing subsequent sentence to run concurrently with the earlier sentence,even when the convict is sentenced on the same day, in two cases,one after the other. ” The Apex Court, in re: Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatt v. Assistant Collector of Customs (Prevention), Ahmedabad, AIR 1988 SC 2143 observed as under :- “ The Section relates to administration of criminal justice and provides procedure for sentencing. The sentencing Court is, therefore, required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be concurrent or consecutive ? The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. ” Criminal Appeal No. 984-SB of 2000 8 Reverting back to the facts of the case in hand, as already noticed, the appellant was convicted and sentenced on one and the same day i.e. 8.9.2000 in the present case i.e. Sessions Case No. 138/99 of 7.5.1999 and Sessions Case No. 137/99 of 7.5.1999 by one and the same Court, but the sentencing Court did not pass an appropriate order as to how the sentence passed in both the cases is to run. Whether it should be concurrent or consecutive though in view of the afore-extracted observations from the case of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti (supra), the sentencing Court was required to consider and pass such an order. In the instant case, the transaction relating to the offence can be deemed to be same for the reason that when the appellant was in custody in case,FIR No. 35 dated 15.2.1999, he made disclosure statement on 18.2.1999 and pursuant thereto the recovery of 6 bags of poppy husk was effected which led to the registration of FIR No.38 dated 18.2.1999. In re: Jai Kishan v. State of Haryana, 2002 Criminal Law Journal 412, it has been observed as under :- “ Under S. 427 Cr. P. C when a person already undergoing a sentence of imprisonment is sentenced, on a subsequent conviction to imprisonment, such imprisonment shall commence at the expiration of the imprisonment, to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. In the present case, the accused-petitioner was sentenced in two cases on Criminal Appeal No. 984-SB of 2000 9 the same day, one after the other. Under such circumstances, the Court was competent to exercise its discretion in directing the subsequent sentence (in case decided subsequently ) that the sentence shall run concurrently with the earlier sentence in the case earlier decided. In the present case, the learned Magistrate had not exercised its discretion. Neither it was specifically mentioned that the sentences in both the cases shall run consecutively nor it was mentioned that no case for the sentences in the two cases to run concurrently, was made out. It is quite possible that this fact had escaped the notice of the learned Magistrate. ” In view of the above extracted observations,the learned trial Court was competent to exercise its discretion in directing the subsequent sentence (in case decided subsequently) that the sentences shall run concurrently with the earlier sentence in the case earlier decided. May be, that this fact had escaped the notice of learned trial Court. Coming to the facts and circumstances of the present case, if the appellant undergoes consecutive sentence, then he will have to spend 20 years in jail. Besides, he would have to undergo further sentence in default of payment of fine of Rs.2,00,000/-,which I consider significantly harsh, and the same compels me to direct both the sentences to run concurrently. As a sequel of the preceding discussion, this appeal is Criminal Appeal No. 984-SB of 2000 10 dismissed with a further direction that the substantive sentences awarded in Sessions Case No. 138/99 of 7.5.1999 decided on 8.9.2000 (FIR No.35 dated 15.2.1999, P. S. Sadar, Hoshiarpur ) out of which Criminal Appeal No. 984-SB of 2000 has arisen, and the Sessions Case No. 137/99 of 7.5.1999 decided on 8.9.2000 (FIR No. 38 dated 18.2.1999, P. S. Sadar, Hoshiarpur ) against which Criminal Appeal No. 985-SB of 2000 has been filed, shall run concurrently. ( HARBANS LAL ) JUDGE 26th February, 2008 RS Whether to be referred to the Reporter ? Yes/No