CRA No.832 SB of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRA No.832 SB of 2005 Date of Decision: 1.9.2009 Birbal …Appellant Versus The State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: Mr.Balwinder Singh, Advocate for Mr.HS Rakhra, Advocate for the appellant. Mr.TS Salana, Deputy Advocate General, Punjab JUDGMENT HARBANS LAL, J This appeal is directed against the judgment /order of sentence dated 7.4.2005 passed by the court of learned Special Judge, Faridkot, whereby he convicted and sentenced the accused Birbal to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lakh under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the Act’) and in default of payment of fine, to further undergo rigorous imprisonment for one year. Shortly put, the facts of the prosecution case are that on CRA No.832 SB of 2005 2 17.6.2002 ASI Sarabjit Singh, Incharge CIA Staff, Faridkot among other police officials happened to be present at Sadiq Chowk, Faridkot in a Government Canter bearing registration No.PB-04C-9518 in connection with patrolling and checking of suspects, where Sukhdev Singh alias Debi came. He was joined in the police party. Thereafter, the police party started towards Ferozepur Road. When the police party neared Ocrtoi Post No.5, the accused was spotted going ahead with a bag slinging from his left shoulder. On catching sight of the police party, he got perturbed and tried to turn towards his left side. On suspicion, he was intercepted. He was offered to have his personal search in the presence of a Gazetted Officer or a Magistrate. He expressed his desire to get the search carried out in the presence of a Gazetted Officer. On receipt of wireless message, DSP Gurmit Singh came at the spot. He disclosed his identity to the accused and apprised him of his right to have his search in the presence of any other Gazetted Officer or a Magistrate. The accused reposed confidence in him. On the direction of DSP, the search of the bag was conducted, which yielded opium. Two samples of 10 grams each were drawn from the bulk of opium and converted into separate parcels. The remainder, when weighed came to 2 kgs.480 grams, which was also turned into a parcel. These parcels were sealed with seals ‘SS’ and ‘GS’. The specimen seal impression was prepared. The seal after use was handed over to ASI Gurmail Singh. The accused was put under arrest. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused. The accused was charged under Section 18 of the Act, to which CRA No.832 SB of 2005 3 he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1 Constable Hira Singh, PW2 SI Tara Singh, PW3 DSP Gurmit Singh, PW4 ASI Gurmail Singh, PW5 ASI Sarabjit Singh and closed its evidence. When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He has put-forth that “he had alighted from the bus at Kotkapura to go to Dhilwan Kalan to meet Joginder Singh, who is his friend. The sisters of Joginder Singh are married in his village. It was evening time and he had taken some liquor. Sarabjit Singh, while in civil dress, inquired from him as to where he had come. He (accused) asked him, who are you. They had some altercation. Sarabjit Singh took him to the police station and falsely implicated him in this case.” He did not adduce any evidence in defence. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on the 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 the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the appellant strenuously urged that in view of Section 2 (vii a) of the Act, opium allegedly recovered from the unauthorised possession of the appellant does not fall within the definition CRA No.832 SB of 2005 4 of commercial quantity. He further puts that the seal after use was not entrusted to Sukhdev Singh @ Debi an independent witness, rather the same was handed over to ASI Gurmail Singh. There being delay of three days in sending the sample to the Chemical Examiner, the possibility of tampering with the contents thereof cannot be ruled out. I have well considered these submissions. In view of Piara Singh versus The State of Punjab 1982 (2) Chandigarh Law Report 447, there is no mandate to hand over the seal to the independent witness. Furthermore, it has been mentioned with specificity in the Chemical Examiner’s report Ex.PD/1 that when the sample parcels were received in his office, the seals were intact and agreed with the specimen seal sent. Thus, the possibility of tampering with the contents of the sample parcels stands ruled out. No other material point has been urged or agitated by either counsel. Section 2 (vii a) of the Act reads as under: “(vii a) “commercial quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;” As per the Notification appended to the Act, in the matter of opium, the specified quantity is 2.5 kgs. Needless to say, so is the recovered quantity of opium in this case. If it had been greater than 2.5 kgs, only then, it would have fallen within the definition of 'commercial quantity'. Thus, CRA No.832 SB of 2005 5 herein, the recovered opium falls within the definition of intermediary quantity. As a sequel of the above discussion, the conviction is maintained. The learned counsel for the appellant has submitted that the appellant has undergone more than 11 months of the actual sentence and in view of the fact that the alleged recovery of opium does not fall within the definition of commercial quantity, the sentence may be reduced to the already undergone. I have well considered this submission. The appellant has been facing the agony of trial since 2002. This incidence is more than 7 years old. As per the custody certificate, taken on record, the appellant has undergone 11 months and 2 days of the actual sentence. Thus, taking into consideration the fact that the recovery of opium falls within the definition of intermediary quantity, the sentence of the appellant is reduced to the already undergone (11 months and 2 days). With this modification in the order of sentence, this appeal is dismissed. September 01, 2009 (Harbans Lal) gsv Judge Whether to be referred to the Reporter? Yes/No.